On March 28, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released an updated set of “Questions and Answers” (Q&As) that provide additional guidance concerning the impact of workplace closures and furloughs upon employers’ obligations to provide paid leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). The relevant questions from the DOL’s guidance are questions 23-29.
The DOL’s guidance reviews a number of different scenarios—regarding the timing of worksite closures and employees’ leaves:
Under question 23, if an employer closes the worksite before April 1, 2020, and sends employees home because there is no work and it cannot pay them, employees are not entitled to paid sick leave or expanded family and medical leave.
Under question 24, if an employer closes its worksite on or after April 1, 2020, (the effective date of the FFCRA) but before employees go out on paid leave or expanded family and medical leave, the employee is not entitled to paid sick or family and medical leave—“even if the employee requested leave prior to the closure.”
Under question 25, if an employer closes its worksite while an employee is “on paid sick leave or expanded family and medical leave,” the “employer must pay for any paid sick leave or expanded family and medical leave the [employee] used before the employer closed.” Employees are no longer entitled to paid sick leave or expanded family and medical leave as of the date the employer closes the worksite.
The DOL states that employees will not be paid in any of the above situations regardless of whether the employer closed the “worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.” In all of these situations, the DOL states that employees “may be eligible for unemployment insurance benefits.”
The DOL provides the following guidance for employers that implement furloughs or reduced hours work schedules under a number of different scenarios:
If an employer furloughs its employees on or after April 1, 2020, because it “does not have enough work or business” for them, the employees who are furloughed “are not entitled to then take paid sick leave or expanded family and medical leave.”
If an employer closes its worksite on or after April 1, 2020, and tells employees that it will reopen at a future date, its employees are not entitled to paid sick leave. This is the case even if the worksite is closed “for a short period of time.” The DOL states that employees are not entitled to paid leave whether employers close their worksites for “lack of business” or “pursuant to a Federal, State, or local directive.” However, if the employer reopens the worksite and employees resume work, employees “would then be eligible for paid sick leave or expanded family and medical leave as warranted.”
In the event of furloughs, the DOL states that employees “may be eligible for unemployment insurance benefits.”
Workplace Reduced Hours
The DOL provided specific guidance for employers to follow when implementing reduced hours work schedules:
If an employer implements reduced hours work schedules because it does not have work for its employees, employees “may not use paid sick leave or expanded family and medical leave for the hours that [they] are no longer scheduled to work.” Employees are not entitled to paid leave because they “are not prevented from working those hours due to a COVID-19 qualifying reason,” and even if their “reduction in hours was somehow related to COVID-19.”
Employees may “take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents [them] from working [their] full schedule.” If employees do take either type of leave, “the amount of leave to which [they] are entitled is computed based on [their] work schedule before it was reduced.” The DOL provides the instructions for calculating the leave for part-time employees in these circumstances in question 5.
Unemployment Insurance and Paid Leave
In question 29, the DOL specifically states that employees may not collect unemployment benefits during the time they are being paid sick leave or expanded family and medical leave. The DOL further notes that “each State has its own unique set of rules; and DOL recently clarified additional flexibility to the States (UIPL 20-10 [Unemployment Insurance Program Letter No. 20-10]) to extend partial unemployment benefits to workers whose hours or pay have been reduced.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.