More FFCRA FAQs from the DOL!


The U.S. Department of Labor has added to its long list of Frequently Asked Questions related to the Families First Coronavirus Response Act. The new material (FAQs 94-97) is not earth-shattering, and I suspect that most employers covered by the law could have guessed the correct answers before reading what the DOL has to say. See how you do on these. As usual, I'm using the DOL's numbering, and this blog post paraphrases the DOL guidance. You can read the real thing here.

94. Joe had to take two weeks of FFCRA leave to care for his elderly dad, who was having symptoms of COVID-19. Joe is ready to return to work, but you are worried about having him come into the workplace and possibly expose your other employees to COVID-19. Do you have any recourse?

You might. You can't "punish" Joe for taking FFCRA leave, but for the safety of your other employees, you can require him to either telework or work in a more physically isolated area until he tests negative for COVID-19. Of course, if and when he tests negative, you'd need to restore him to his regular position. 

95. Mary took 80 hours of sick leave under the Emergency Paid Sick Leave Act in late April. Then her employer put all the employees, including Mary, on furlough. Mary has returned to work and wonders whether she is entitled to a new 80-hour allotment of Emergency Paid Sick Leave. Is she?

Of course not. The pre-furlough leave counts (assuming it was taken after April 1, when the FFCRA took effect). If the leave was not for a "school" situation, Mary has exhausted her paid leave allotment under the FFCRA. On the other hand, if she had taken less than 80 hours before the furlough, she would have been entitled to the remainder -- for a qualifying reason -- upon her return to work.

96. Mary's brother Harry took four weeks of paid leave starting April 2, while his kids' school was closed. He and his co-workers were furloughed in May. Harry is back now, but his kids are home because their summer camp is closed. Can Harry take FFCRA leave now, and if so, how much?

Yes! Eight more weeks! (The total leave allotment for a "school" situation is 12 weeks.)

97. Doris is calling her furloughed employees back to work at her retail store, Ye Olde Shoppe With Fewere Than 500 Employees. Ethel has three school-age children and, in all likelihood, will need to take FFCRA leave when she returns because all of the summer day camps are closed due to COVID-19. Can Doris just leave Ethel on unpaid furlough while she brings the other employees back to work? It's not like Ethel would be working anyway.

Nice try, but no. Doris would have to bring Ethel back and let her take FFCRA leave. Anything else would be considered discrimination or retaliation. 

Did you get these all right? I bet you did!

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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