Department of Labor Issues New Guidance Answering Many Questions Regarding the Families First Coronavirus Response Act

The Department of Labor has issued new guidance in the form of a Q&A that answers many questions as to the Families First Coronavirus Response Act (“Act”) and narrows its applicability. The complete guidance can be found on the DOL's website, but here are some highlights.

Critically important, the guidance clarifies what it means to be unable to work, which is crucial to whether an employee is entitled to either paid leave or paid emergency FMLA leave. An employee is considered unable to work only if the Employer has work for the employee to perform and the employee is unable to perform it for one of the COVID-19 qualifying reasons either at the employee’s normal worksite or via teleworking. What this means is that an Employer who closes its worksite either before or after the April 1, 2020, effective date of the Act because it has no work or because it is required to do so by a federal, state or local directive does not have to pay its employees either paid sick leave under the Act or as expanded FMLA leave. If an employee is on paid leave or expanded FMLA paid leave at the time the Employer closes the worksite, it must pay for any paid sick leave of expanded FMLA paid leave the employee used before the worksite was closed. Similarly, if an Employer remains open but furloughs an employee on or after April 1 because it does not have enough work for the employee, the employee is not entitled to either form of paid leave under the Act. This is true even if the Employer tells the employee that it will reopen. 

Another important point is that if an employee’s work hours are reduced because the Employer does not have work for the employee to perform, the employee is not entitled to either paid leave or expanded FMLA leave under the Act. This is so because the reduced hours are not the result of a COVID-19 qualifying reason, even though the reduction in hours was related to the pandemic. On the other hand, paid leave or expanded FMLA paid leave is available if the employee is unable to work for a COVID-19 qualifying reason. 

In all of the cases mentioned above, the employee might be eligible for unemployment compensation.

An employee may not use any Employer-provided pre-existing leave and leave available under the Act unless the Employer consents to the employee doing so. Rather, the employee must elect which benefit it wants to use. If the Employer consents to both benefits, the employee may use the Employer-provided benefit to bridge the gap, for example, between the 2/3 salary available under the Act and the employee’s regular wage, but not beyond the regular wage. Employers who elect to pay employees an amount beyond what the Act requires will not receive any tax credit for the excess amount.

Many questions have arisen as to the ability to take intermittent leave under the Act. The availability of intermittent leave depends on its purpose and, to some extent, the Employer’s consent, but must be taken in full-day increments when permissible. The DOL Q&A covers the use of intermittent leave in some detail.