By: Brian R. CarnieChelsea G. CaswellA. Edward Hardin, Jr.Scott D. HuffstetlerErin L. KilgoreMichael D. LoweZoe W. Vermeulen, and David M. Whitaker

Overnight, the U.S. Department of Labor’s Wage and Hour Division posted additional answers to pressing questions regarding leave issues under the Families First Coronavirus Response Act.  These Q&As address a number of recurring employer questions.

Documentation.  One of the topics addressed by the DOL includes required documentation to support the need for leave (which the employer will also need to support a claim for tax credits).  For example, documentation of the need for leave under the expanded FMLA can include something such as a notice posted on a government, school, or daycare website, notice published in a newspaper, or an email from an employee or other official from a school, place of care, or childcare provider (Q&A 15).  For paid sick leave under the Act, documentation of the need for leave would include a quarantine or isolation order related to COVID-19 or documentation from a healthcare provider advising the employee to self-quarantine due to concerns related to COVID-19 (Q&A 16).

Intermittent Leave.  Another important issue addressed in the Q&As is the use of intermittent leave under the Act.   The DOL differentiated between intermittent leave while teleworking and intermittent leave while working at the usual worksite.  While teleworking, the employer and employee may agree that paid sick leave and leave under the expanded FMLA be used intermittently (Q&A 20).  Conversely, an employee may not take intermittent leave while working at the usual worksite if the need for leave is because of COVID-19-related exposures or care for those exposed to COVID-19 (e.g., the employee is subject to a quarantine or isolation order related to COVID-19, the employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19, the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis, the employee is caring for an individual who is either subject to a quarantine or isolation order related to COVID 19 or has been advised by a healthcare provider to quarantine due to concerns related to COVID 19, or the employee is experiencing similar conditions specified by the Secretary of Health and Human Services).  Unless the employee is teleworking, once the employee begins taking leave for these illness-related purposes, the employee must continue to take paid sick leave until the amount of leave has been exhausted or the employee is no longer experiencing the qualifying reason for taking paid sick leave.  This limitation makes perfect sense, because the intent of the leave requirement is to provide paid sick leave as necessary to keep COVID-19 from spreading to others (Q&A 21).  Of course, if the employee is able to telework, then the employer and employee can agree to intermittent leave as described above.  Finally, an employee taking expanded FMLA leave may take intermittent leave due to the closing of a child’s school or place of care, if the employee is not teleworking, but only with the employer’s permission (Q&A 22).

Leave Entitlements and Reduced Hours.  Regarding an employer’s closure and layoffs both before and after April 1, even if the employer indicates a desire to re-open at some time in the future, those impacted employees are not entitled to the leave provided under the Act (Q&As 23-27).  If an employer reduces scheduled work hours, leave under the new Act cannot be used to offset the reduced hours because the employee is not prevented from working because of a qualifying reason for leave, notwithstanding the fact that the reduction in hours was somehow related to COVID-19 (Q&A 28).

Substitution.  Finally, substitution of paid leave for traditional unpaid FMLA leave is something that is well-established under the FMLA (as it existed prior to the current crisis), including those situations where employees are receiving a reduced amount of pay pursuant to a disability benefit plan (see, e.g., 29 CFR 825.207(d)).  Paid leave provided by the new Act may be less than what the employee would have received had the employee worked.  In that case, an employer and employee may agree to apply other employer-provided paid leave to make up the difference.  Thus, if an employee is receiving 2/3 of their normal pay, the employer and employee may agree that the employee may use pre-existing employer-paid leave to make up the additional 1/3 of the employee’s normal earnings so that the employee receives his or her full normal earnings (Q&As 31-32).  However, employers should closely track and account for the amounts of leave provided under the Act (differentiating between leave under the Act and other paid leave) so that the employer can demonstrate compliance with the Act and claim the proper tax credits.  Although an employer and employee may agree to the substitution described above, an employer may not require an employee to supplement the reduced pay provided for under the paid leave Act with paid leave the employee has available under the employer’s policies (Q&A 33).

If you have questions, please contact Kean Miller labor and employment attorneys, Brian R. Carnie (318.562.2652), Chelsea G. Caswell (225.382.3405), A. Edward Hardin, Jr. (225.382.3458), Scott D. Huffstetler (225.389.3747), Erin L. Kilgore (225.389.3712), Michael D. Lowe (318.562.2653), Zoe W. Vermeulen (504.620.3367), and David M. Whitaker (504.620.3358).