More Answers on the Emergency Paid Sick Leave Act
March 31, 2020 — Late last week, the Department of Labor issued new expanded regulations to the Families First Coronavirus Response Act that was passed in mid-March. These expanded regulations answer additional questions, which many employees have asked concerning the new paid leave acts which I previously summarized here and here.
Requests for Information/Documentation:
The DOL regulations establish that employees requesting leave must provide employer with an explanation of the qualifying reason for leave and a statement that the employee is unable to work or telework. Employees must also supply employer documentation (1) from a healthcare provider requiring quarantine or self-isolation; or (2) documentation supporting a school or daycare closure.
Leave Only if Unable to Work or Telework:
The DOL explains that being “unable” to work or telework means that an employer has work available, but the employee cannot perform the work in person or through telework due to one of the reasons set out in the Act. If an employer offers the ability to work the same number of hours per day but different hours, the employee is able to work and leave is unnecessary unless: 1) the reason for leave prevents the employee from working that schedule; 2) the employee has a qualifying paid sick leave absence; or 3) the employee cannot telework due to the need to care for a child.
Intermittent Leave with Employer’s Agreement:
Intermittent leave may be taken under the Act only if the employer agrees to intermittent leave.
Layoffs/Furloughs:
No protected leave is available if an employee is let go due to lack of available work or worksite closure before or after the Act’s April 1 effective date. This is true whether or not an employer closes its worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive.
Employee is Limited to 80 Hours Emergency Paid Sick Leave:
The total number of hours for which an employee may receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act. A part-time employee is capped at the average number of hours that the employee works over a typical two-week period. This leave may be taken for any combination of qualifying reasons. Ten weeks of additional paid leave can be taken for the care of a child due to school closure or unavailability of childcare under the Emergency Family Medical Leave Act.
Inability to Telework:
If your employer permits teleworking—for example, allows you to perform certain tasks or work a certain number of hours from home or at a location other than your normal workplace—and you are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave.
Similarly, if you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or childcare provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.
For more information, please contact Tony Stergio.
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