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DOL Updates Questions & Answers Page for Families First Coronavirus Response Act

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

Earlier this week, we advised you that the US Department of Labor had issued a Question & Answers webpage that addressed some issues arising out of the passage of the FFCRA, most importantly clarifying that it would become effective on April 1, 2020. (Click here.) Yesterday, the DOL updated that “Questions and Answers” webpage and added more than 25 new questions and answers regarding various issues under the FFCRA for both employers and employees. Here is a summary of the various issues addressed by the updated Q&A page:

  • Clarifies that the FFCRA creates a new paid leave as of April 1st and does not apply retroactively:
    • Employees are not entitled to FFCRA leave if:
      • Employer has closed work site and/or furloughed employee prior to April 1; 2020; or
      • Employer closes work site and/or furloughs employee after April 1, 2020 but before employee has started FFCRA leave.
  • Makes clear that FFCRA leave can be taken intermittently in certain circumstances related to having to take care of children who are subject to school/child care closures.
  • Only employees who have been on the employer’s payroll for at least 30 calendar days prior to the FFCRA’s effective date (i.e. as of March 2, 2020) are eligible for FFCRA leave.
  • Explains the types of documentation that an employer can require from an employee (and must maintain) in relation to FFCRA leave as well as the employee’s obligations to provide such documentation.
  • Employees are only eligible for FFCRA leave if they are unable to work (even remotely) as a result of COVID-19, which includes those employees required to stay-home by local authorities and are unable to work remotely. If an employer has work for the employee, and the employee can perform that work remotely, the employee is not eligible for the leave (absent having symptoms of, or caring for a family member with symptoms of COVID-19) just because they cannot report to their normal worksite.
  • Employees cannot receive both unemployment pay and FFCRA paid leave.
  • Although employers can consider paying employees on FFCRA leave an amount in excess to that required by the law, the employer will not be able to claim, or be entitled to receive, a tax credit for that excess amount.
  • Employers who are subject to multi-employer collective bargaining agreements may be able to satisfy their FFCRA obligations by making contributions to the multi-employer fund or plan under certain conditions.

California employers should continue to monitor our blog for future updates concerning the FFCRA and other employment developments as a result of the COVID-19 pandemic. We also advise employers to seek legal advice to determine whether the FFCRA applies to their business, and if so, what steps to take to ensure compliance.