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Updated Guidance from Department of Labor – March 26, 2020

On March 26, 2020, the US Department of Labor (“DOL”) Wage and Hour Division issued additional guidance related to components of the Families First Coronavirus Response Act (“FFCRA”), expanding upon the advice provided earlier in the week. The following is a discussion of those new updates we identified were most pertinent to our clients but if you have any questions regarding issues not covered below, please do not hesitate to contact one of our attorneys. 

Record Requirements

Employers are required to collect and maintain records supporting an employee’s usage of either the Emergency Paid Sick Leave Act (“EPSLA”) or the Emergency Family and Medical Leave Expansion Act “(EFMLEA”) if they intend upon claiming the available tax credit related to paying those benefits.  Employers should consult applicable IRS 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.

EPSLA Record Requirements
Employees seeking paid sick leave under the EPSLA must provide appropriate documentation in support of the reason for the leave, including:

      • Employee’s name;
      • Qualifying reason for requesting leave;
      • A statement that the employee is unable to work, including telework, because of the qualifying reason for requesting leave;
      • The date(s) for which leave is requested.
      • Documents supporting the reason for the leave. Examples include:
      • The source of any quarantine or isolation order;
      • A copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee.
      • The name of the health care provider who advised to self-quarantine;
      • Written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.

EFMLEA Record Requirements
Employees taking EFMLEA leave to care for a child whose school or place of child care is closed must provide you with appropriate documentation in support of such leave, just as they would for conventional FMLA leave requests.  This includes:

      • Notices of closure posted on a government, school or day care websites;
      • Notices of closure published in a newspaper;
      • An email from an employee or official at the school or place of care

Intermittent Leave

Intermittent Leave While Teleworking
Employees may take intermittent paid leave under either the EPSLA or the FMLEA, if: (1) their employer agrees to it; and (2) the employee is unable to telework during their normal scheduled hours due to one of the qualifying reasons in those acts.  That intermittent leave can be in any increment agreed upon by employer and employee.  For example, employer and employee could agree on a 90-minute increment, where 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.

Intermittent Leave While Working from Usual Worksite
Employees may take intermittent leave under either the EPSLA or FMLEA while working from their usual worksite only if: (1) their employer agrees to it; and (2) they are taking paid leave because they are staying home to take care of a child whose school or child care is closed.  Employees mayNOT take intermittent leave if they are receiving leave benefits because they themselves are sick, may be sick, have been advised to self-quarantine by a medical professional, or are caring for someone who is sick with COVID-19.  For example, if an employee’s child is at home because his or her school or place of child care is closed because of COVID-19 related reasons, that employee could take paid sick leave on Mondays, Wednesdays, and Fridays to care for their child, but work at your normal worksite on Tuesdays and Thursdays.

Workplace Closures and Furloughs 

    • Employers who close a worksite before April 1, 2020, are not obligated to pay EPSLA or EFMLEA benefits to employees who formerly worked in that closed worksite.
    • Employers who close a worksite on or after April 1, 2020, are not obligated to pay EPSLA or EFMLEA benefits to employees who worked in that closed worksite if those employees had not started receiving leave benefits prior to the closure, even if the employee had requested leave prior to the closure.
    • Employers who close a worksite while employees are on EPSLA or EFMLEA paid leave must pay those employees for any EPSLA or EFMLEA leave used before the employer closed, but as of the date the employer closes the worksite employees are no longer entitled to those benefits.
    • Employers who remain open but who furlough certain employees because of a lack of work or business are not required to pay EPSLA or EFMLEA benefits to those furloughed employees.
    • Employers who close a worksite on or after April 1, 2020, but who tell employees it will re-open in the future are not obligated to pay those employees EPSLA or EFMLEA benefits while that worksite remains closed.
    • Employees who have seen a reduction in their hours may not use EPSLA or FMLEA benefits to cover the hours that employee is no longer scheduled to work.

Excess Payments

Employers who wish to may pay their employees in excess of the amounts mandated by the EPSLA or EFMLEA.  Importantly, however, those employers will not be able to claim those excess amounts in tax credits.


Sat Mar 28, 8:53pm

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