COVID-19 Update - New U.S. DOL Guidance on Documentation, Telework, Intermittent Leave, Effect of Furloughs, and More

The U.S. Department of Labor has updated its FFCRA Q&As, adding Questions 15-37 to address to address common questions about documentation, teleworking, taking leave intermittently, and the effect of furloughs & layoffs. In short:

1. Employers must require appropriate documentation from employees to support their reason for emergency paid sick leave or eFMLA. This includes the employee’s name, reason for leave, statement that the employee is unable to work (or telework), the date(s) leave is requested, and supporting documentation like a copy of the quarantine/isolation order, name of the health care provider who advised them to quarantine, or a closure notice from the employee’s school or daycare.

2. If an employer permits telework, but the employee becomes unable to perform the work for a FFCRA or eFMLA reason, the employee may take leave. As explained by the DOL, “If you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.“

3. Temporary emergency paid sick leave and eFMLA may be taken intermittently to care for a child whose school or daycare is closed, but only with employer consent. For any other reason, emergency paid sick leave may only be taken in full day increments. As explained by the DOL, “If you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your 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 your 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, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.”

4. Furloughed employees and employee with reduced hours may not use emergency paid sick leave or eFMLA to make up for the reduction of hours. DOL clarifies that, “If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19."

The new guidance also states that employees are not eligible to supplement their FFCRA pay with an employer’s pre-existing leave entitlements. However, Oregon’s sick time law requires employees to be compensated at their regular rates of pay if they are unable to work for a qualifying reason. Oregon’s Bureau of Labor and Industries recently engaged in temporary rulemaking to address coronavirus-related issues. We anticipate additional guidance will be released to clarify the intersection between the FFCRA and existing Oregon leave laws.