Updated FAQ on Families First Coronavirus Response Act

Two days after issuing its initial FAQ about the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) has updated the list, including adding 23 new questions. We will have full coverage of the updated FAQ soon. Here are some highlights:

•  Employers may require supporting documentation from employees who take paid leave, including the qualifying reason for leave, a statement that the employee is unable to work or telework, and supporting medical documentation, quarantine orders, or school closure notices (as applicable). These records will also be used to support an application for the tax credits available under the FFCRA.
•  An employee is “unable to work (or telework)” when one of the COVID-19 qualifying reasons for leave (including the need to care for a child) prevents them from being able to perform work at their worksite, from home, or from another location.
•  An employee is not “unable to work (or telework)” if the employee and employer reach an agreement to allow the employee to work a normal number of hours on an adjusted schedule (such as early in the morning or late at night) or if the employee is able to telework while caring for a child.
•  Both paid sick leave and expanded FMLA leave can be taken intermittently if a COVID-19 qualifying reason prevents employees from either working or teleworking on their normal schedule. Whether to allow intermittent leave is generally left to the employer’s discretion.
•  For teleworking, intermittent leave can be taken in any increment, so long as the employee and employer agree (e.g., alternating between telework and leave every 90 minutes). For working at the normal worksite, intermittent leave must be taken in full-day increments (e.g., working Tuesday and Thursday and taking leave Monday, Wednesday, and Friday), unless the employer and employee agree to a different schedule (e.g., working in the morning and taking leave in the afternoon).
•  Once an employee begins taking paid sick leave for a COVID-19 qualifying reason, they must keep taking leave on the agreed upon schedule until they either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for sick leave. This limit is imposed to help stop the spread of COVID-19.
•  Paid sick leave and expanded FMLA leave are not available to employees whose worksite closed before April 1, 2020, regardless of whether the closure was caused by lack of work or a government order. Employees should apply for unemployment benefits instead.
•  If a worksite is closed while employees are on paid leave, the employer must pay for all leave used before the closure but does not have to pay for leave going forward after the closure. This is true regardless of whether the employer plans to reopen at some point. Employee should apply for unemployment benefits instead.
•  Employees who are furloughed on or after April 1, 2020, are not eligible for paid leave. Employees should apply for unemployment benefits instead.
•  Employees whose hour are reduced are not eligible for intermittent paid leave for the hours they are no longer working.
•  Employees are entitled to continuing health insurance coverage under a group plan while on paid leave.
•  Employees are not entitled to take their paid time off benefits and paid leave simultaneously, unless the employer agrees. On the flipside, employers may not mandate that an employee use their paid time off benefits and paid leave simultaneously, unless the employee agrees.
•  Employers who pay their employees more than the amount mandated by the FFCRA may not obtain tax credits for the extra payments.
•  Employers who are subject to a collective bargaining agreement may satisfy their obligations under the FFCRA by making contributions to a multiemployer fund, but may also satisfy them by direct payments or other methods.