Late Friday, March 27, and again on Saturday, March 28, the Department of Labor added a number of FAQs to its March 24 guidance. Here are some of the highlights, including guidance relating to business closures and layoffs, as well as the relation between emergency public health leave and other leave under the FMLA:

• Paid emergency sick leave and expanded family leave under the FFCRA are NOT available if the employer sent the employee home for lack of work or closed prior to the April 1, 2020 effective date, even if the closure was pursuant to an order of State, Local or Federal government. Benefits are also not available if the employer closes the worksite or lays the employee off after April 1, but before the employee requires leave, or shuts down while the employee is on leave (the employee must still be paid any benefits for which he/she was eligible to receive prior to the closure). (#23 – #27)
• Paid emergency leave under the FFCRA is in addition to any paid leave already provided by the employer. An employer may not mandate that an employee use his/her accrued leave (e.g., PTO, vacation, sick pay) before using or in lieu of leave under the FFCRA. (#32, #33)
• Employers who intend to claim a tax credit for leave under the FFCRA should document the reason for the leave, the payments and supporting documentation (e.g., records of a school closure). Check with the IRS for further guidance on claiming the credit. (#15, #16)
• Telework, for which an employee receives his/her normal wages, is not the same as paid emergency leave, when no services are being performed. If an employee becomes unable to work for a covered reason while teleworking, the employee becomes eligible for paid emergency leave. (#17 – #19)
• Paid sick leave and expanded family leave may be taken intermittently upon the agreement of the employer and employee – but only if the employee is teleworking or the leave is due to a public health emergency (i.e., expanded family leave). Otherwise, paid sick leave must be taken in full-day increments until the leave is exhausted or the need for the leave no longer exists. Remember, the intent of the law is to allow employees to keep away from the workplace. (#20 – #22)
• For employers covered by the FMLA on April 1, 2020, public health emergency leave is just another reason for leave under the FMLA. That is, an employee is entitled to a total of 12 weeks, including expanded family leave. Thus, if an employee already used 6 weeks of medical leave under the FMLA, he/she would only be eligible for 6 weeks of public health emergency leave. (#44, #45)
• Paid sick leave is not a form of FMLA leave. An employee is eligible for paid sick leave even if he/she has exhausted all of his/her FMLA. (#46)

Click here to review the FAQs in their entirety.

Questions? Contact attorney Alan Seneczko in our Oconomowoc office at alseneczko@wesselssherman.com or by phone at (262) 560-9696