Pension & Benefits News Additional FMLA, FFCRA FAQs issued as workplaces reopen amid COVID-19 pandemic
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Monday, July 27, 2020

Additional FMLA, FFCRA FAQs issued as workplaces reopen amid COVID-19 pandemic

By Pension and Benefits Editorial Staff

On July 20, the Department of Labor issued two new frequently asked questions (FAQs) regarding COVID-19 issues under the Family and Medical Leave Act (FMLA) and four new FAQs regarding the Families First Coronavirus Response Act (FFCRA). The DOL also issued two new fact sheets for employers and employees covering the FFCRA’s paid leave requirements.

FMLA. The DOL has confirmed that until December 31, 2020, telemedicine visits will be considered to be in-person visits, and electronic signatures will be considered signatures for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities, the FAQ noted.

In addition, the DOL states that the FMLA does not prohibit an employer for requiring an employee who was out on FMLA leave to get a COVID-19 test before they come back to the office. The employer’s requirement for testing can not be related to the employee being out on leave, but if all employees are required to undergo testing to come back to the office, those returning from FMLA leave also can be required to get a test. The DOL notes that other laws might impose restrictions on the circumstances when an employer can require COVID-19 testing (see https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws for more information).

FFCRA. Two of the new FFCRA FAQs address timing issues in regard to using paid leave and an employee’s furlough status. For instance, if an employee used 80 hours of paid sick leave under the FFCRA before being furloughed, they are not eligible for additional paid sick leave under the FFCRA after they go back to work. If they had used less than 80 hours of sick leave before being furloughed, the employee would be entitled to use the remaining hours after the furlough if they had a qualifying reason to do so.

Similarly, another FAQ states that if an employee had used four weeks of expanded FMLA before being furloughed, the employee would be eligible for eight additional weeks of leave after returning to work (since employees are entitled to 12 total weeks of expanded FMLA leave). However, the DOL notes that in both instances, employers can treat the post-furlough leave as a new leave request and ask the employee to provide the appropriate documentation for the reason they currently needs leave.

Fact sheets. The DOL also provided two fact sheets on the employer paid leave and the employee paid leave requirements under the FFCRA. These are available at https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave and https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave.

SOURCE: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions; https://www.dol.gov/agencies/whd/fmla/pandemic

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