Department of Labor Updates to Families First Coronavirus Response Act
Kenneth M. Krock
The Department of Labor recently issued a Family First Coronavirus Response Act: Questions & Answers fact sheet to answer compliance questions for employers. According to the Department of Labor, the new Families First Coronavirus Response Act (“FFCRA”), which includes the Paid Leave Act and the Expanded Family Medical Leave Expansion Act (“EFMLEA”), went into effect on April 1, 2020. Below is a summary of some of the issues addressed by the Department of Labor.
Whether or not an employee can telework is up to the employer. If an employer decides that an employee can telework, then that employee is not entitled to Paid Leave Act and EFMLEA benefits. However, an employee may be unable to work or telework if one of the COVID-19 qualifying reasons set forth in the Paid Leave Act or EFMLEA prevents them from being able to work either at the worksite or at home. If an employee is unable to telework because of one of the COVID-19 qualifying reasons under the Paid Leave Act or EFMLEA, then the employee is entitled to benefits.
An employee may take leave under the Paid Leave Act and the EFMLEA intermittently depending on the reason for leave and ability to telework. Intermittent leave must be agreed to by the employee and the employer. The Department of Labor encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.
Obligation to Provide Leave
The Paid Leave Act and the EFMLEA are not retroactive, therefore claims for leave prior to April 1, 2020 are not covered under the Acts. Therefore, an employer who has closed their office before April 1, 2020 has no obligation to provide leave under either Act. If an employer closes the worksite and has some employees on leave under either Act, then the employer is only obligated to pay for the leave the employees used before the office closed. An employer is not obligated to provide leave under either Act to furloughed employees who are not working. An employer who reduces an employee’s hours is not obligated to provide leave under either Act for the hours that the employee is no longer scheduled to work.
Group Health Coverage
An employer must maintain health coverage during an employee’s EFMLEA and Paid Leave Act leave if the employee is enrolled in the employer’s group health plan. However, if an employee does not return after the end of their EFMLEA leave then they will need to check with their employer to determine eligibility to keep their health coverage on the same terms.
Taking Leave Concurrently and Supplementing Pay
An employee may take leave under the Paid Leave Act concurrently with the first 10 days of unpaid leave under the EFMLEA, but those 10 days will be counted toward the 12 workweeks of leave in a 12-month period permitted under the EFMLEA.
An employee may also choose to use other paid leave (PTO, vacation, etc.) provided by the employer to supplement the amount of pay the employee receives from the Paid Leave Act and the EFMLEA. This is the employee’s choice and may not be required by an employer. If an employee wishes to supplement the amount of pay they receive under the Paid Leave Act and the EFMLEA with other paid leave provided by the employer, then the employer has the option to permit the employee to do so.
For more information contact Kenneth M. Krock in Rapp & Krock’s Labor and Employment group.
ABOUT THE AUTHOR:Kenneth M. Krock is a Shareholder at Rapp & Krock, PC in the Litigation group.
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