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COVID-19: New, Updated Guidelines for Employer Paid Leave Requirements

COVID-19: New, Updated Guidelines for Employer Paid Leave Requirements

The U.S. Department of Labor (DOL) recently released new Families First Coronavirus Response Act (FFCRA) return-to-work guidance for organizations to follow during the coronavirus pandemic, including paid leave requirements for covered employers through Dec. 31, 2020. Here's what you need to know.

 

What Changes Were Made to Paid Leave Requirements?

When the FFCRA became public law on March 18, 2020, it enacted several key changes to paid leave requirements. These included: 

  1. Two Weeks of Paid Sick Leave at Regular Rate: Covered employers must provide all employees with two weeks (up to 80 hours) of paid sick leave at their regular rate of pay if the employee is unable to work due to quarantine and/or COVID-19 symptoms.
  2. Two Weeks of Paid Sick Leave at Two-Thirds Rate: Covered employers must provide all employees with two weeks (up to 80 hours) of paid sick leave at two-thirds their regular rate of pay if the employee is unable to work due to a “bona fide need to care for an individual subject to quarantine.” This provision also applies to care for a child (under 18) whose school or childcare provider is unavailable or closed as a result of COVID-19.
  3. Additional 10 Weeks of Paid Expanded Family and Medical Leave: If a worker has been employed for at least 30 days, covered employers must provide 10 weeks of paid expanded family and medical leave at two-thirds their regular rate of pay if the employee cannot work “due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.”

Additionally, SHRM points out that new guidelines provide clarification on the following points: 

  1. Furloughs Don’t Count Against Leave Entitlement: If an employee is furloughed, this time does not count towards their full 12 weeks of permitted FMLA/FFCRA leave.
  2. Return-to-Work Updates: Employees returning to work after caring for a family member exposed to COVID-19 can be required to work a position that limits coworker interaction (or telework). However, the employee must be restored to their same or equivalent position upon return. Negative COVID-19 tests can also be required before returning to work, but SHRM recommends employers follow DOL and EEOC guidance to avoid infringing on rights protected by the ADA.
  3. Retaliation Protection: Employers cannot extend an employee’s furlough if they expect the worker to take FFCRA leave once they’ve been called back to work.

 

What Counts as a Qualified Reason for Leave?

The DOL determined that the following scenarios qualify a worker for paid sick leave if they’re unable to work or telework:

  1. The employee is subject to a federal, state, or local COVID-19 quarantine or isolation order. 
  2. The employee has been advised by a healthcare provider to self-quarantine.
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  4. The employee is caring for someone subject to an order described in point 1 or a self-quarantine as described in point 2.
  5. The employee is caring for a child whose school or place of childcare if closed (or provider is unavailable) for reasons related to COVID-19.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (in consultation with the Secretaries of Labor and Treasury).

For reasons 1–4 and 6, part-time employees are eligible for the number of hours of leave that they’d average over a two-week period; for reason 5, part-time employees are eligible for leave for the number of hours they’d normally work during that period.

 

Updated: FFCRA Guidelines

In September 2020, the DOL issued clarifications on several FFCRA rules. These include:

  1. Employees must have work available to them in order to take FFCRA leave
  2. Employees must receive approval from their employer to take FFCRA leave
  3. Employers can exclude employees from FFCRA leave eligibility if they're healthcare providers or emergency responders as defined by the FMLA (with exceptions)
  4. Employees are required to provide appropriate leave documentation as soon as possible
  5. Improved consistency regarding reasonable notice procedures for employees

 

Which Employers are Impacted by these Requirements?

According to the DOL, the leave provisions in the FFCRA apply to certain public employers and private employers with less than 500 employees. 

The agency also indicates that small businesses (with less than 50 workers) may be exempt from the requirement to provide leave related to school closings and childcare unavailability if the time off “would jeopardize the viability of the business as a going concern.”

Also, note that covered employers qualify for dollar-for-dollar tax credit reimbursement for leave wages paid under the FFCRA. More information can be found at irs.gov. To calculate the rate of pay by the scenarios listed in the previous section, go to dol.gov.

COVID-19 Return to Work Readiness Checklist

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