Labor & Employment Law Daily Dems point to disconnect between DOL Q&As and FFCRA paid leave provisions
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Tuesday, April 7, 2020

Dems point to disconnect between DOL Q&As and FFCRA paid leave provisions

By Pamela Wolf, J.D.

The guidance “creates gratuitous loopholes that allow employers to shirk their responsibility to provide paid leave,” according to the lawmakers.

The Senator Patty Murray (D-Wash.) and Congresswoman Rosa DeLauro (D-Conn.) are calling the Department of Labor (DOL) to the carpet over guidance on paid leave—included in the Families First Coronavirus Response Act (FFCRA)—that “directly undermines the bipartisan agreement to expand access to paid leave for workers during the coronavirus outbreak,” as the two lawmakers see it.

The guidance, issued on March 24, “creates gratuitous loopholes that allow employers to shirk their responsibility to provide paid leave, significantly reducing the number of workers who would be able to stay home if they’re sick or need to care for a loved one and still receive a paycheck,” Murray and DeLauro explained in a press release.

Getting it right. In an April 1 letter to Labor Secretary Eugene Scalia, the lawmakers take issue with several questions and answers posted in the DOL guidance, saying that the department makes “assertions regarding the following topics that are not in accordance with law” in the following Q&As:

  • Nos. 15 and 16 regarding certification of the need for leave;
  • Nos. 18 and 23-27 regarding what qualifies as being “unable to work” as well as employers’ ability to evade the requirements of the Act by closing a worksite, furloughing employees, or reducing work hours;
  • No. 20, 21, and 22 regarding the ability to take leave intermittently;
  • Nos. 55 and 56 regarding the definition of a “health care provider”; and
  • The absence of a Q&A clarifying that “shelter in place” orders qualify employees for paid sick leave.

Murray and DeLauro addressed each of these items in their letter, and asked that these particular Q&A be removed immediately, revised in accordance with the FFCRA’s text and congressional intent, and reposted on DOL’s website.

Access improperly limited. Under the FFCRA, workers are provided with two weeks of paid sick days related to coronavirus and 10 weeks of paid family leave for school closures. The DOL guidance, however, improperly limits access to paid leave by allowing employers to require unnecessary certification from employees, restricting which employees qualify, restricting employees’ ability to take leave intermittently, and exempting large swathes of certain employees, according to the Democratic lawmakers.

Skewed interpretation. Specifically, the lawmakers are concerned about how the DOL’s interpretation of the law will hurt workers by improperly allowing employers to:

  • Require certification in order for workers to qualify for paid leave.The DOL states that employers can require certification for employees to qualify for paid leave, even though the FFCRA does not require any such certification from employees.
  • Restrict what qualifies as being “unable to work.”The DOL states that employees only qualify for paid sick or family leave if they are unable to work and their employer has work for them, allowing employers to cut off employees’ rights to paid sick or family leave by claiming they have nothing for the employee to do. This guidance is in direct contradiction with the FFCRA, which does not allow employers to use those tactics to prevent employees from receiving paid leave.
  • Restrict worker’s ability to take leave intermittently.The DOL states that an employee may only take their leave intermittently “if your employer allows it.” This conclusion is found nowhere in the text and gives the employer, rather than the employee who has the need for leave, the ability to decide how to use the employee’s leave.
  • Exempt employees from paid leave.The FFCRA exempts narrowly defined “health care providers” from the paid leave provisions due to the nature of the current crisis. But without authority, the DOL redefined a “health care provider” to include nearly any employee who happens to work for an employer who also employs a health care provider, works at any type of quasi-medical facility, works as an employee contracted for non-healthcare services in a facility that houses a health care provider, or merely works in the medical supply chain.
  • Not guaranteeing paid leave during a “shelter in place” order.The DOL does not clarify that a government directive to stay at home qualifies for paid leave. In fact, the DOL even indicates that employees lose their right to paid leave if their employer closes the employee’s worksite in the event of a government directive. This clearly defies the FFCRA which grants paid leave to employees who are subject to quarantine or isolation orders from government officials.

Guidance updated in the meantime. Note that the DOL has in the meantime updated its Q&As, for example, in No. 60 confirming that a shelter-in-place order would provide a qualifying reason for paid sick leave, so long as other requirements are met (the employer has work for the employee that the employee could perform but for shelter-in-place order). Where the employer does not have work for the employee because of shelter-in-place or a stay-at-home order, the DOL refers to Questions 23-27, which seem to indicate that the employer has no obligation to provide paid sick leave as of the date of closure.

“Thanks to Republican opposition, the steps we’ve taken on paid leave are inadequate in light of the crisis, and now, the Trump Administration is twisting the law to allow employers to shirk their responsibility and is significantly narrowing which workers are eligible for paid leave,” according to Senator Murray. She said the guidance needs to be rewritten so workers can get the leave that the new law guarantees.

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