U.S. Department of Labor Issues Additional Guidance on Families First Coronavirus Response Act
The U.S. Department of Labor’s Wage and Hour Division (“DOL”) published additional Q&As regarding the Families First Coronavirus Response Act (“the Act”) on March 26, 2020, which address some of the open issues regarding the mechanics of leave under the Act. Foley & Lardner’s Coronavirus Task Force outlined the DOL’s initial March 24, 2020 guidance on the Act here.
Quick Debrief: The Act takes effect April 1, 2020; covers private employers with fewer than 500 employees (and certain public employers); and provides varying amounts of paid leave in the form of Emergency Paid Sick Leave (PSL) and Emergency Family and Medical Leave (EFML).
PSLまたはEFML（あるいはその両方）の義務が発生する6つの適格事由は以下の通りです：
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 (PSL only);
- 当該従業員は、医療従事者からCOVID-19に関連する自主隔離を指示されました（PSLのみ）。
- 従業員はCOVID-19の症状を呈しており、医学的診断を求めています（PSLのみ）。
- 従業員が（1）に記載された命令の対象となる個人、または（2）に記載された自主隔離（PSLのみ）の対象となる個人の世話を行っている場合；
- 従業員が、COVID-19関連の理由により学校または保育施設が閉鎖された（または保育提供者が利用不可となった）ため、その子の世話をしている場合（PSLおよびEFML）；または
- 当該従業員は、米国保健福祉省が指定するその他の実質的に類似した状態（PSLのみ）を経験している。
Key Points from the WHD’s Additional Q&A are Outlined Below:
What Are the Documentation and Recordkeeping Obligations for PSL and EFML?
For PSL, the DOL guidance requires employers to obtain documentation including the employee’s name, dates of the requested leave, qualifying reason the requested leave, a statement that the employee is “unable to work, including telework” for that reason, and documentation supporting that reason (e.g., the source of the isolation order, the name of the healthcare provider telling the employee to self-quarantine, etc.).
For EFML, the DOL guidance requires supporting documentation just as employers would for conventional FMLA leave requests. The DOL cites examples of notices posted on government, school, or daycare websites, or an email from the school or childcare provider.
In either case, the DOL instructs employers to retain these documents if they intend to claim a tax credit.
The DOL also reminds employees that conventional FMLA certification requirements may still apply. If employees take conventional FMLA leave for one of the qualifying reasons (for example, they exhausted 80 hours of PSL and still suffer from a serious health condition related to COVID-19), employees must meet existing certification requirements under the FMLA.
働けない／テレワークができないとはどういう意味ですか？
The DOL clarifies that “teleworking” for purposes of the Act means that the employer permits the employee to work while at home or some location other than the normal workplace.
従業員が「勤務不能（テレワークを含む）」となるのは、雇用主が当該従業員に業務を割り当てているにもかかわらず、同法に基づく有給休暇の6つの適格事由のいずれかに該当するため、当該従業員が職場においてもテレワークにおいても当該業務を遂行できない場合を指す。
However, if an employer and employee agree that the employee will work the normal number of hours but outside the normal schedule, the employee is considered able to work. Similarly, to the extent employees can telework while caring for their child(ren), PSL and EFML are not available. Finally, if an employer reduces an employee’s work hours due to a lack of work, the employee cannot use PSL or EFML for the hours the employee is no longer scheduled to work.
Can Employees Take PSL or EFML Intermittently?
With respect to intermittent leave, the DOL guidance differentiates between PSL and EFML, and between teleworking and working at the normal worksite.
Employees who are teleworking can take either PSL or EFML intermittently (in any increment) while teleworking, with the employer’s permission.
Employees who are not teleworking can take EFML intermittently, with the employer’s permission. The employer and employee must agree on the schedule.
Employees who are not teleworking must take PSL in full day increments. Whether it can be intermittent depends on the reason for the leave:
- Once the employee begins taking PSL for any qualifying reason other than childcare during a school closure/unavailable childcare provider due to COVID-19, the employee must continue to take the leave each day until it is exhausted or until the employee no longer has a qualifying reason to take it. This is because the intent of the law is for sick employees to stay home continuously to stop spreading the virus.
- In contrast, with the employer’s permission, an employee who is not teleworking can take PSL intermittently to care for a child whose school is closed/childcare provider is unavailable. Moreover, employers/employees can agree to intermittent leave on less than a full day basis for employees who are not teleworking and need to care for a child whose school is closed/childcare provider is unavailable.
職場が閉鎖された場合、従業員は同法に基づき有給休暇を取得する権利があるか？
According to the DOL guidance, if an employer closes a worksite, employees are not entitled to PSL or EFML. The guidance indicates this is the case regardless of (a) whether the worksite closed before or after April 1, 2020 (the effective date of the Act); (b) whether employees are “furloughed,”; (c) whether the employer says it will reopen in the future; or (d) whether the closure is due to lack of business or pursuant to a Federal, State, or local directive. If the worksite closes while an employee is on paid leave, the employee is no longer eligible for paid leave following the closure. The DOL guidance directs employees to seek unemployment compensation benefits for recourse in the event of a workplace closure.
This guidance on workplace closures raises a question of whether the ever-growing number of state and local “shelter in place” or “stay at home” orders trigger an obligation under the Act’s requirement to provide PSL when an employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19. Considering the Act’s clear mandate to provide PSL in that scenario, and the intent of the Act, the more prudent reading of the guidance is that employers need not provide leave under the Act to employees laid off as a result of the workplace closure even if the closure was based on a federal, state or local ordinance.
Does Health Coverage Continue During PSL or EFML?
Again, the DOL guidance distinguishes PSL from EFML.
For EFML, if the employer provides group health coverage and the employee elected such coverage, the employee is entitled to continue group health coverage for the duration of leave under the Act and on the same terms as if the employee was working. The DOL guidance instructs employees to check with employers regarding continued coverage in the event an employee does not return to work at the end of an EFML leave.
As for PSL, the employer must continue health coverage during the leave.
同法に基づく休暇は、雇用主の既存の休暇規定と併行して適用されるのか？
Generally, no. Employees and employers must agree to use leave under the Act simultaneously with employer-provided leave. In other words, employers cannot “top off” paid leave under the Act with PTO that an employee had already accrued under the employer’s policy, except by agreement. Note, however, that the tax credits available under the Act are capped at the maximum amount of PSL or EFML and no tax relief is available for any agreed-upon top off.
Can Employees Collect Unemployment Insurance Benefits While Receiving PSL or EFML?
Generally, no. However, the DOL notes that each state has its own unique unemployment compensation rules, and that the DOL recently clarified additional flexibility for states extending partial unemployment benefits to works whose hours or pay has been reduced. The DOL guidance directs employees to their appropriate state workforce agency.
Of course, the COVID-19 pandemic presents an unprecedented and still-evolving legal landscape for employers. Therefore, the above interpretation is based on Foley & Lardner’s best judgment of available information in a rapidly changing and uncertain environment, and to that end we cannot guarantee that governmental authorities concur with the above. For more information about recommended steps, please contact your Foley relationship partner. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the CDC and the World Health Organization.
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