Hunton Employment & Labor Perspectives

The Families First Coronavirus Response Act (the “Act”) is set to take effect on April 1, 2020.  As we previously reported, the Act requires that employers with fewer than 500 employees provide two new forms of paid leave.  First, covered employers must provide up to 80 hours of emergency paid sick leave to employees who are unable to work because of certain COVID-19 related reasons.  Second, covered employers must provide up to 10 weeks of paid FMLA leave (in addition to the 80 hours of emergency paid sick leave) to eligible employees who are unable to work or telework because they need to care for a child whose school or daycare is closed due to the COVID-19 pandemic.

On Tuesday, March 24, the DOL released an initial set of “Questions and Answers” related to the Act, which provided helpful guidance on how to calculate the 500-employee coverage threshold and how the two different forms of paid leave work together.

On Saturday, March 28, the DOL updated its prior guidance to add a significant number of additional questions and answers.  The entire Q&A list can be found here, and employers should review the guidance in its entirety. Below, we highlight a few of the more important takeaways.

• Intermittent Leave. In questions 20 through 22, the DOL addresses whether an employee can take paid leave on an intermittent basis. For employees that are teleworking, the DOL states that employers are permitted – though not required – to allow employees to use the leave available under the Act on an intermittent basis.  For employees that are working at their usual worksite, the availability of intermittent leave depends on the reason for the leave.  If such employees need leave to provide care for their child whose school or place of care is closed, their employer is permitted (but not required) to allow them to take leave on an intermittent basis.  However, such employees cannot take paid leave intermittently if they are unable to work because: (1) they are subject to a Federal, State, or local quarantine or isolation order; (2) they have been advised by a health care provider to self-quarantine; (3) they are experiencing symptoms of COVID-19 and seeking medical diagnosis; or (4) they are caring for an individual who is subject to a quarantine order or has been advised by a health care provider to self-quarantine. The DOL explains that this distinction is necessary to keep employees from spreading the virus to others at the worksite.
• Application To Employees Laid-Off Or Furloughed. In questions 23 through 27, the DOL confirms that, if an employee is laid off or furloughed at any time before or after the Act’s April 1, 2020 effective date because the employer’s business closes or because there is insufficient work, then the employee is not entitled to paid leave under the Act from the date of the layoff/furlough going forward.
• Total Amount Of FMLA Leave Available. In questions 44 and 45, the DOL makes clear that an eligible employee can only take up to 12 total weeks of FMLA leave during the applicable 12-month FMLA measuring period, inclusive of the expanded paid FMLA leave under the Act. Thus, for example, if an employee previously used 2 weeks of FMLA leave in January 2020 for a serious health condition, the employee only has 10 weeks of leave remaining to use for expanded paid FMLA leave or any other form of covered FMLA leave. Similarly, if an employee uses 4 weeks of expanded paid FMLA leave, that employee has 8 weeks of FMLA leave remaining during the remainder of the 12-month FMLA measuring period.
• Availability Of Tax Credits. Finally, throughout the Q&A, the DOL reminds employers that the tax credits under the Act are only available for the paid sick leave required under the Act. Though the DOL acknowledges that employers may choose to provide paid leave in excess of what is required under the Act, employers cannot apply for or receive tax credits for such additional leave.