When Congress passed the Families First Coronavirus Response Act ("CRA"), it left much for the U.S. Department of Labor ("DOL") to explain. The DOL has started offering vital interpretations employers need to consider in making decisions over the next few weeks.
1. When does the CRA become effective?
April 1, 2020.
2. But it’s not going to be enforced for 30 days, right?
About that … The DOL surprised observers by clarifying the 30 days started when the President signed the CRA into law, so the non-enforcement period will end on April 17, not April 30. Of course, that non-enforcement period only applied to the DOL, not private lawsuits. And, just so there is no misunderstanding, the DOL made clear “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.”
3. Can employees take 80 hours of paid sick leave for one reason and then another 80 hours for another reason provided under the Emergency Paid Sick Leave Act?
Not a chance. Employees get to take up to two weeks—or 10 days—(80 hours for a full-time employee, less for part-time) for any combination of qualifying reasons. But, the total number of hours is capped at 80.
4. Can employees take paid sick leave in partial days?
Not normally. Unless teleworking, paid sick leave must be taken in full-day increments. In general, once an employee who is not teleworking begins taking paid sick leave for a reason other than child care, the employee must continue to take paid sick leave each day until the employee either (1) uses the full amount of paid sick leave or (2) no longer has a qualifying reason for taking paid sick leave. If the employee’s reason for taking paid sick leave ends before the 80 hours is exhausted, the employee may take any remaining paid sick leave at a later time, before December 31, 2020.
5. Can employees take this leave intermittently?
Only if the employer and the employee agree, and only if the employee is teleworking, or needs paid sick leave or emergency FMLA for child care. The DOL “encourages employers and employees to collaborate to achieve flexibility and meet mutual needs.”
6. What does “unable to work” mean?
It means the employer has work and a COVID-19 qualifying reason prevents the employee from being able to perform that work, regardless of schedule or by means of telework.
7. How do I document leave requests?
Be reasonable. You are entitled to documentation to support the request – and will need it to claim the tax credit – so always collect:
- 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.
Documentation also includes a copy of any federal, state or local quarantine or isolation order and/or or written documentation by the relevant health care provider.
If an employee takes leave for child care, you still should document the reason just as you would for conventional FMLA leave requests. For example, this could be a notice that has been posted on a government, school, or day care website; published in a newspaper; an email from an employee or official of the school, place of care, or child care provider. Critically, you will need this to claim the tax credit.
8. What happens when there is a reduced work schedule?
A reduced work scheduled is not the same as being unable to work. This is because the employee was not prevented from working those hours due to a COVID-19 qualifying reason, but a change in schedule, even if the reduction in hours was somehow related to COVID-19.
These are just a cursory list of the most common questions and answers. For more detail, or to assess how the CRA applies to your business, contact Spilman’s COVID-19 Task Force.
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