On Monday July 20, 2020, the Department of Labor (“DOL”) added four more questions to the questions and answers list to further clarify the Families First Coronavirus Response Act (“FFCRA”). The additional questions relate to the following: caring for a parent who is advised by a health care provider to self-quarantine because of symptoms of COVID-19; whether an employee who used paid sick leave under the FFCRA prior to being furloughed can use paid sick leave under the FFCRA again after going back to work; how much family and medical leave is available to an employee who used four weeks prior to being furloughed and is now returning to work; and, whether it is appropriate to extend an employee’s furlough because he would need to take FFCRA leave to care for his child. Below are the complete questions and answers the DOL added to the questions and answers list:
ANSWER: It depends. In general, an employee returning from paid sick leave under FFCRA has a right to be restored to the same or an equivalent position, although exceptions apply as described in Question 43. However, due to the public health emergency and your employee’s potential exposure to an individual with COVID-19, you may temporarily reinstate him to an equivalent position requiring less interaction with co-workers or require that he telework. In addition, the employee must comply with job requirements that are unrelated to having been out on paid sick leave. For instance, a company may require any employee who knows he has interacted with a COVID-infected person to telework or take leave until he has personally tested negative for COVID-19 infection, regardless of whether he has taken any kind of leave. Such a policy would apply equally to an employee returning from paid sick leave. However, you may not require the employee to telework or be tested for COVID-19 simply because the employee took leave under the FFCRA.
ANSWER: No. Employees are limited to a total of 80 hours of paid sick leave under the FFCRA. If you had taken fewer than 80 hours of paid sick leave before the furlough, you would be entitled to use the remaining hours after the furlough if you had a qualifying reason to do so.
ANSWER: Under the FFCRA, your employee is entitled to up to 12 weeks of expanded family and medical leave. She used four weeks of that leave before she was furloughed, and the weeks that she was furloughed do not count as time on leave. When she returns from furlough, she will be eligible for eight additional weeks of leave if she has a qualifying reason to take it. Because the reason your employee needs leave may have changed during the furlough, you should treat a post-furlough request for expanded family and medical leave as a new leave request and have her give you the appropriate documentation related to the reason she currently needs leave. For example, before the furlough, she may have needed leave because her child’s school was closed, but she might need it now because her child’s summer camp is closed due to COVID-19-related reasons.
ANSWER: No. Employers may not discriminate or retaliate against employees (or prospective employees) for exercising or attempting to exercise their right to take leave under the FFCRA. If your employee’s need to care for his child qualifies for FFCRA leave, whether paid sick leave or expanded family and medical leave, he has a right to take that leave until he has used all of it. You may not use his request for leave (or your assumption that he would make such a request) as a negative factor in an employment decision, such as a decision as to which employees to recall from furlough.
For more information, please contact Lisa Scidurlo, Joseph Hofmann, Theresa Zechman, Daniel Sobol or reach out to the Stevens & Lee attorney with whom you regularly work.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.
