Partner Carrie Hoffman was quoted in the Law360 article, “7 Takeaways from Labor Dept.’s COVID-19 Paid Leave Rule,” about worker eligibility under the new, emergency paid sick leave rules enacted by the Department of Labor under the CARES Act. The law The law created the first-ever federal mandate that employers with fewer than 500 employees provide workers with short-term paid sick time for various reasons tied to COVID-19, and long-term paid leave to care for kids whose schools or childcare facilities are closed.
In the newly issued Labor Department guidance, workers may be surprised to learn that they won't be able to avail themselves of any of the leave options made available in the FFCRA during any period where their employers are closed, whether for lack of business or because of an order by public officials. But workers in those situations can potentially claim unemployment benefits, according to the agency. If a business remains open but furloughs workers, those individuals similarly won't be entitled to leave under the FFCRA but also can seek unemployment. The eligibility criteria might come as a "surprise to individuals who thought they were going to have job-protected leave," potentially leaving it to employers to have to break the bad news, Hoffman said.
"The issue as you read through the regs, and even frankly the previous guidance, is that if your worksite is closed down, meaning you don't have work available, then people aren't eligible for this," Hoffman said. "Meaning 'it's OK if I can't come to work, but there has to be work available for me to be eligible for the benefit under Families First.' That I guess was surprising and has been surprising to numerous of my clients. ... I don't think individuals understand that, and it's leaving HR folks with a lot of explanation to provide."
Hoffman also said that it's surprising that the DOL adopted the position that the emergency FMLA leave isn't separate from the 12 weeks of FMLA time workers usually get under normal circumstances. So, if a worker took FMLA leave for, say, surgery before the pandemic struck, that time would count against the amount of leave they are entitled to because of COVID-19. "That's a difficult thing again to communicate because this wasn't planned," Hoffman said. "So if you're an employee who's already taken advantage of FMLA for whatever reason, you're not going to then be able to take [expanded] FMLA, which is paid."
If employees who are short on FMLA time ask their employers for time off due to child care issues during the pandemic, Hoffman said some of her clients have resigned themselves to potentially just granting them expanded FMLA anyway without being able to later ask the federal government for tax credit reimbursement for it, noting that it might be a "tough sell" from an employee relations point of view if an employee who isn't getting paid because of child care problems sees a colleague in a similar situation getting paid.