By: Chantal N. Guerriero, Esq. and Ty Hyderally, Esq.

In a recent blog, we outlined the federal government’s new Families First Coronavirus Response Act (“FFCRA”), one of the various relief efforts put into place during the global COVID-19 pandemic. Since its enactment, the Department of Labor (“DOL”) continues to issue guidance and clarification which will aid employees seeking to benefit from and enforce their rights under the act. To restate, employees qualifying for coverage under the Bill are those:

• subject to a federal, state, or local quarantine or isolation order;
• advised by a health care provider to self-quarantine;
• experiencing symptoms of COVID-19 and seeking medical diagnosis;
• caring for an individual who is subject to a federal, state, or local quarantine order, or the individual has been advised to self-quarantine due to concerns related to COVID-19; or
• caring for the employee’s son or daughter, if the child’s school or child care facility has been closed or the child’s care provider is unavailable due to Covid-19 precautions.

The DOL’s guidance includes the issuance of a Q&A which answers many practical questions employees may have, highlighted below:

When am I able to telework under the FFCRA?

Where an employer permits or allows the employee to perform work while at home or at a location other than the normal workplace. Under such circumstances, normal wages must be paid and are not compensated under the paid leave provisions of the FFCRA.

What does it mean to be unable to work, including telework for COVID-19 related reasons?

Employees are considered unable to work if their employer has work for them and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, either under normal circumstances at the normal worksite or by means of telework.

If I am or become unable to telework, am I entitled to paid sick leave or expanded family and medical leave?

Where an employer permits teleworking and the employee is unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then the employee is entitled to take paid sick leave.

When calculating pay due to employees, must overtime hours be included?

Yes. The Emergency Family and Medical Leave Expansion Act requires employers to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

Where an employer closes while the 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. However, as of the date the employer closes its worksite, employees are no longer entitled to paid sick leave or expanded family and medical leave. That being said, the employee may be eligible for unemployment insurance benefits.

May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?

Yes, but only with an employer’s permission. Intermittent expanded family and medical leave should be permitted only when both the employee and employer agree upon such a schedule. Thus, an interactive discussion between the two should precede this type of leave.

U.S. Department of Labor, Families First Coronavirus Response Act: Questions and Answers, (2020).

It should be noted that this excerpt highlights just a handful of the questions that employees may have during the time period in which their employment may be affected by COVID-19, and employees should keep a close watch on the guidance and regulations that continue to be released in the coming weeks to ensure that their rights are not being violated.

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.