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COVID-19 Emergency Paid Sick Leave and Family Medical Leave: An updated notice and more from Department of Labor

As of Friday, March 27, the Department of Labor has issued an updated notice on its website, as well as responses to additional questions about the Families First Coronavirus Response Act (the “Act”). The new notice can be found here: FFCRA Poster.[1]  The updated notice clarifies that employees may have a total of up to 12 weeks of leave, paid at 2/3 of pay, to care for a child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

The Department’s expanded questions and answers on the new law also provide additional guidance for employers on a number of issues, specifically:

  1. What records does an employer need to keep when employees take paid sick leave or expanded family and medical leave?

The Department states that employers “must require” employees to provide appropriate documentation in support of the reason for the leave. This documentation must include basic information, such as the employee’s name, the reason for requesting leave, a statement that the employee is unable to work or telework, and all dates for which leave is requested, together with documentation of the reason for the leave. DOL has provided some examples of documentation, such as the source of any state or local order affecting the employee, a notice from a school regarding closure, or the name of the health care provider advising the employee to self-isolate or quarantine. The documentation should be maintained and retained for tax purposes if the employer intends to take applicable tax credits.

  1. Are eligible employees entitled to paid leave if an employer shuts down a worksite or has no work available for the employee?

The DOL has clarified that if the employer is closed, or has no work available (such as by placing employees on furlough), employees will not be entitled to take paid leave during the time of the closure or furlough. DOL’s guidance also states that if an employee’s hours are reduced because the employer does not have work for the employee to perform, the employee may not use covered leave for the hours that the employee is no longer schedule to work. The DOL’s reasoning is that leave may only be taken when an employee is prevented from working due to a COVID-19 qualifying reason, not merely because a change in hours is related to the virus.

Final Takeaways

As with all other aspects of the COVID-19 pandemic response, laws are rapidly evolving.  Please reach out to your Spencer Fane attorney if you have questions on how this new act affects your business or organization.

This blog post was drafted by Helen Holden. She is an attorney in the Spencer Fane LLP Phoenix, Arizona office.

[1] If you previously downloaded the notice, you may need to refresh your browser to obtain the most recent version.