After issuing preliminary guidance for the now-effective Families First Coronavirus Response Act, the DOL has expanded its guidance for both the Paid Sick Leave and Expanded Family Medical Leave portions of the Act. We talked about the basics of both acts last week, and if you need a refresher on those, you can find them here. The guidance from the DOL is 125 pages. We’ve taken the subjects we feel are most relevant to your organizations and laid them out below.
The DOL provided additional guidance on timekeeping for employees who are teleworking. First, it stressed that employees needed to be paid for all time spent teleworking, but must record all hours actually worked. An employer is not required to compensate employees for unreported hours worked while teleworking for COVID-19 related reasons unless the employer had reason to know the employee was teleworking. The DOL’s guidance on a continuous workday, meaning employees should be paid for time worked from start to finish, does not apply in situations involving telework during the COVID-19 period.
The EFMLEA applies to employees who have been employed for at least 30 calendar days, including employees who were laid off or “otherwise terminated” on or after March 1, 2020 and were subsequently rehired or otherwise employed by the same employer. Employees may not take paid sick leave where the employer does not have work for employees.
Employees can combine the two weeks of paid sick leave provided by the EPSLA for care for children whose schools or daycares are closed with the ten weeks of expanded FMLA leave to create 12 weeks of continuous paid leave. In addition, the exempt status of employees is not affected by an employee’s decision to supplement the 2/3 wage payment with additional sick leave.
The Department offers extensive guidance on calculating workweeks for part-time employees who are out for expanded FMLA leave. Employers should look at the average hours worked by employees over the last six months to formulate how much employees should be paid per week. If employees have worked fewer than six months, employees should look at the reasonable expectation for hours worked at the time the employee was hired.
Regarding the EPSLA, employees who are subject to a quarantine or isolation and able to telework may not be paid sick leave if there is work for the employee to perform, the employer permits the employee to work while quarantines, and there are no extenuating circumstances that would prevent the employee from working.
Employees who are taking sick leave to seek a medical diagnosis must be suffering from the symptoms of the flu (fever, dry cough, shortness of breath, etc.) and taking “affirmative steps to obtain a medical diagnosis.” Employees waiting for results of tests may not take paid sick leave if they are able to work while awaiting the results of the test while in isolation.
If employees are attempting to use paid sick leave to care for individuals subject to a quarantine order or has been advised to self-quarantine must have a “genuine need to care for the individual,” meaning the person they are caring for must be “an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates a similar expectation for care.”
Thankfully, the Department provided guidance on which employees are “health care providers” or “emergency responders” who may be excluded from the EPSLA and EFMLEA’s leave requirements. The term “health care providers” includes “any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency.”
“Emergency responders” includes employees who interact with and aid individuals with physical or mental health issues; ensure the welfare and safety of communities; have specialized training relevant to emergency response; and provide essential services relevant to “the American people’s health and wellbeing.” Use that information as you will, and if you need further clarification, you can consult the FAQs on the acts as well.
The notice requirements for employees are very liberal, and employees simply need to provide notice as soon as practicable after the first workday or portion of a workday for which an employee receives paid sick leave. Employees are not required to provide documentation from a health professional of their need for leave, but need to provide their name, dates that leave is requested, and the qualifying reasons for the leave and a statement that the employee is unable to work or telework.
Finally, the maximum payment for employees under the FMLEA and the EPSLA is $12,000. Employers who fails to provide paid sick leave as required are considered to have violated the minimum wage portions of the FLSA, and are forbidden from discharging, disciplining, or in any other way retaliating against employees who take advantage of the paid sick leave law.
Notices for the Act should already be posted, and can be found here. The guidance for the new Act is extensive, not very well-written, and can be complicated. If there are specific circumstances that you need addressed, you may need additional guidance on how to apply the terms of the Act. If you or your organization are in need of guidance, contact the Wiley Law Office for employment guidance during the health emergency that works.