Client Alert: COVID-19 Considerations For Emergency PSL & Emergency FMLA
Action Items
- Review our COVID-19 Employee Leave Requirements & Documentation.
- Prepare leave request forms.
- Train managers on leaves and required documentation.
On April 2, 2020 the U.S. Department of Labor (DOL) issued a Temporary Rule on the Families First Coronavirus Response Act's (FFCRA) Paid Sick Leave and Emergency Family and Medical Leave Expansion Act. Additionaly, on April 1, 2020 the IRS issued a FAQ describing the substantiation requirements for the related tax credits. This Client Alert summarizes those employee representations and documentation requirements. The Temporary Rule provides these additional clarifications:
- No Paid Sick Leave (PSL) or Emergency Family and Medical Leave Expansion (EFMLE) if there is no work for the employee
- No PSL or EFMLE if the employee is able to telework (work remotely)
- Intermittent leave is available if both employer and employee agree, and either (a) if the employee is working at the employer’s workplace, only if the leave is to care for a child whose school is closed or care is unavailable, or (b) if the employee is teleworking
COVID-19 Employee Leave Requirements
To view the substantiation requirements in depth, visit https://www.bfkn.com/covid-19-employee-leave. An employee must provide documentation and make certain representations to substantiate the need for a leave that is due to any of the following reasons: that the employee...
- Is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (coronavirus)
- Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
- Is experiencing symptoms of COVID-19 and seeking a medical diagnosis
- Is caring for an individual who is subject to an order under (1) above or has been advised under (2) above
- Is caring for a child due to school closure or unavailability of a childcare provider
Additional DOL Clarifications
- The DOL reconciled the 10 days of unpaid EFML and the two weeks of PSL by providing that the unpaid period of EFML is two weeks
- The employer may not require an employee to use other paid leave provided by the employer before the employee uses PSL (limited exception for paid leave under expanded FMLA)
- The Emergency PSL is limited to 80 hours for each person, regardless of the employer. Therefore, employers should require employees to represent that the employee has not received any Emergency PSL from any other employer
We Can Help You
We have been on the forefront of dealing with COVID-19 for our clients. Please contact us if you would like to discuss any of these issues, or if we can otherwise be of assistance.
COVID-19 Resources
We recommend you evaluate the following pandemic-related business and legal considerations that we have been discussing with our clients:
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