Pension & Benefits News More updated questions and answers from DOL on COVID-19 and documentation, telework, intermittent leave,
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Tuesday, April 7, 2020

More updated questions and answers from DOL on COVID-19 and documentation, telework, intermittent leave,

By Pension and Benefits Editorial Staff

As provided under the Families First Coronavirus Response Act (FFCRA), the DOL will be issuing implementing regulations, but in the interim, the DOL said it will continue to provide compliance assistance to employers and employees on their responsibilities and rights under the FFCRA. Some of the agency’s more recent updates are highlighted below, in whole or in part. Keep checking the DOL’s Questions and Answers page for additional information.

Documentation requirements. Question #15 What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?

  • Basic info. If one of your employees takes paid sick leave under the Emergency Paid Sick Leave Act, you must require your employee to provide you with appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested.
  • Reason for leave. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised you to self-quarantine. For example, this documentation may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee, or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.
  • Tax credits. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave wages, you should retain this documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.
  • To care for a child. If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, under the Emergency Family and Medical Leave Expansion Act, you must require your employee to provide you with appropriate documentation in support of such leave, just as you would for conventional FMLA leave requests. This could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or childcare provider. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason.
  • Tax credits. If you intend to claim a tax credit under the FFCRA for the expanded family and medical leave, you should retain this documentation in your records. You should consult IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.
  • Medical certification. In a separate question, the DOL noted that all existing certification requirements under the FMLA remain in effect if an employeeis taking leave for one of the existing qualifying reasons under the FMLA. For example, for leave beyond the two weeks of emergency paid sick leave because a medical condition for COVID-19-related reasons rises to the level of a serious health condition, an employee must continue to provide medical certifications under the FMLA if required by the employer.

Telework. Question #17 When am I able to telework under the FFCRA?

  • Telework is when an employer permits or allows the employee to perform work while at home or at a location other than the employee’s normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.

Question #18 What does it mean to be unable to work, including telework for COVID-19 related reasons?

  • An employee is unable to work if the employer has work for that employee, and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, either under normal circumstances at the normal worksite or by means of telework.
  • Odd working hours. If employee and employer agree that the employee will work the normal number of hours, but outside of their normally scheduled hours (for instance early in the morning or late at night), then the employee is able to work and leave is not necessary unless a COVID-19 qualifying reason prevents the employee from working that schedule.

Question #19 If I am or become unable to telework, am I entitled to paid sick leave or expanded family and medical leave?

  • If the employer permits teleworking and the employee is unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then the employee is entitled to take paid sick leave.
  • If the employee is unable to perform those teleworking tasks or work the required teleworking hours because they need to care for a child or children whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then the employee entitled to take expanded family and medical leave. Of course, to the extent an employee is able to telework while caring for a child or children, paid sick leave and expanded family and medical leave is not available.

Intermittent leave. Question #20 May I take my paid sick leave or expanded family and medical leave intermittently while teleworking?

  • Yes, if the employer allows it and if the employee is unable to telework a normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, employee and employer may agree that the employee may take paid sick leave intermittently while teleworking. Similarly, if an employee is prevented from teleworking their normal schedule of hours because of a need to care for a child whose school or place of care is closed, or the child care provider is unavailable, because of COVID-19 related reasons, the employer and employee may agree that the employee can take expanded family medical leave intermittently while teleworking.
  • Any agreed-upon increment. An employee may take intermittent leave in any increment, provided that employee and employer agree. For example, if they agree on a 90-minute increment, the employee could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.
  • The Department 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.

Question #21 May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?

It depends on why the employee is taking paid sick leave and whether the employer agrees. Unless the employee is teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • The employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Don’t spread the virus. Unless the employee is teleworking, once they begin taking paid sick leave for one or more of these qualifying reasons, they must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if employees are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

If an employee no longer has a qualifying reason for taking paid sick leave before it is exhausted, the employee may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

To care for a child. If employer and employee agree, the employee may take paid sick leave intermittently to care for a child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if the child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, an employee may take paid sick leave on Mondays, Wednesdays, and Fridays to care for that child, but work at their normal worksite on Tuesdays and Thursdays.

The Department encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full workday for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the Department is supportive of such voluntary arrangements.

Question #28 If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work?

  • No. If an employer reduces an employee’s work hours because it does not have work for them to perform, they may not use paid sick leave or expanded family and medical leave for the hours that they are no longer scheduled to work. This is because an employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19.
  • An employee may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents the employee from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced.

Temporary non-enforcement period. On March 24, 2020, the DOL issued a Field Assistance Bulletin to provide guidance to WHD field staff regarding the temporary non-enforcement period applicable to the FFCRA. To enable public and private employers who are covered by the Act to come into compliance with the new statute, WHD will observe a temporary period of non-enforcement of the FFCRA for the period of March 18 through April 17, 2020.

The Department will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e., March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.

For purposes of this non-enforcement position, an employer who is found to have violated the FFCRA acts "reasonably" and "in good faith" when all of the following facts are present:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.
  2. The violations of the Act were not "willful" based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer "either knew or showed reckless disregard for the matter of whether its conduct was prohibited…").
  3. The Department receives a written commitment from the employer to comply with the Act in the future.

If the public or private employer either (i) violates the Act willfully, (ii) fails to provide a written commitment to future compliance with the Act, or (iii) fails to remedy the violation upon notification by Department, the employee seeking payment, or a representative of that employee, including by making all affected employees whole as soon as practicable, the Department reserves its right to exercise its enforcement authority.

After April 17, 2020, this limited stay of enforcement will be lifted, and the Department will fully enforce violations of the Act, as appropriate and consistent with the law.

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