On March 25, we reported that the US Department of Labor (DOL) had begun to release informal guidance regarding its interpretation of the Families First Coronavirus Response Act (FFCRA), which requires that certain employers, including, among others, private employers with fewer than 500  employees, provide paid sick and paid family leave in certain circumstances resulting from the COVID-19 pandemic.  On March 26, the DOL updated its frequently asked questions (FAQs) page to address additional open questions vexing employers subject to the FFCRA.  Some of the key updates are as follows.

Date on which to measure the 500-employee threshold

With many businesses implementing layoffs or furloughs, many employers questioned when the 500-employee threshold is measured. The FAQs clarify that the 500-employee test is measured on the day that any particular employee requests leave.  If on that date the employer employs 500 or more employees, the employee’s request for paid sick and/or paid family leave under the FFCRA may be denied.

Eligibility in the event of worksite closures

• If an employee’s worksite closed before April 1, 2020, an employee will not get paid sick leave or expanded family leave benefits, whether the worksite closure was due to lack of business or because it was required to close pursuant to a federal, state, or local directive.

• If an employee’s worksite is closed on or after April 1, 2020 but before the employee takes paid sick or family leave, the employee is entitled to be paid for time taken prior to, but not after, the worksite closure, whether the worksite closure was due to lack of business or because it was required to close pursuant to a federal, state, or local directive.

• If an employee’s worksite closes while he or she is on paid sick leave or expanded family leave, the employee is entitled to be paid for any time taken prior to, but not after, the worksite closure, whether the worksite closure was due to lack of business or because it was required to close pursuant to a federal, state, or local directive.

Eligibility in the event of a furlough

• If an employer is otherwise open but furloughs an employee because the employer “does not have enough work or business” for him or her, the employee is not entitled to take paid sick leave or expanded family leave unless another qualifying reason applies.

• If an employer closes a worksite temporarily after April 1, 2020 but promises to reopen at some time in the future, employees are not entitled to use paid sick or paid family leave during the period of the worksite furlough, no matter how brief the worksite closure and regardless of whether the closure is due to lack of business or because it was required to close pursuant to a Federal, State, or local directive. When the employer reopens and the employee resumes work, if before December 31, 2020, the employee is then eligible for paid sick leave or expanded family leave, as warranted.

Reductions in hours of work

Employees may not use paid sick leave or paid family leave to “make up” for time when an employer cuts hours from their schedule, even if the reduction in available work is “somehow related to COVID-19.”  Only a specific COVID-19 qualifying reason entitles an employee to the use of paid leave.

Relationship with unemployment insurance

If an employer provides an employee paid sick leave or paid family leave under the FFCRA, or paid time off pursuant to a paid discretionary leave policy or pursuant to state or local law (such as state or municipal paid sick leave statutes), the employee is not eligible for unemployment benefits.  However, in circumstances where worksites are closed or employees are furloughed and paid sick leave and family leave is unavailable, employees may be eligible for unemployment benefits.  The DOL recently clarified that states have additional flexibility to extend partial unemployment benefits to workers whose hours or pay have been reduced.

The FAQs also clarify when and under what circumstances employees can use paid sick leave and paid family leave intermittently (which differ depending on whether the employee is teleworking or not, and whether the leave is for one’s own condition or for child care reasons), and in what increments (partial- or full-day increments), and on what information the employer is permitted to request and the employee is required to provide to certify that their absence qualifies for paid sick and family leave.  They also clarify that employees may use accrued paid time off to supplement wages paid under the FFCRA, but that employers cannot require use of accrued time off to supplement wages if employees do not agree.