The DOL issued its first guidance on the Families First Coronavirus Response Act (“FFCRA”) last week that provided helpful information about paid sick leave and the expanded FMLA leave. Since then, the DOL has added significantly more information to its guidance, which clarifies several very important issues regarding the implementation of the FFCRA. Below we have summarized some of the biggest changes from the employment perspective.

Does a shelter-in-place order (such as the one issued by Governor Whitmer) constitute a state isolation or quarantine order that triggers paid sick leave pursuant to the FFCRA?

The FFCRA does not directly define what constitutes a state isolation or quarantine order and there was uncertainty about whether shelter-in-place orders would qualify. However, the new DOL guidance states employers who close operations after the FFCRA’s effective date do not need to provide employees paid sick leave pursuant to FFCRA, even if the business is closed pursuant to a Federal, State, or local directive. It thus appears Michigan’s Shelter-in-Place Order most likely does not trigger paid sick leave pursuant to the FFCRA.

Does an employer need to provide FFCRA paid sick leave if its offices are closed prior to the effective date of April 1, 2020?

No, an employer does not need to provide paid sick leave pursuant to FFCRA to a worker if the employer sent a worker home and stopped paying them prior to the FFCRA’s effective date (April 1).

Does an employer need to continue paying FFCRA paid sick leave pursuant if it closes its offices while employees are on paid sick leave?

Employers must pay employees for all paid sick leave used as of the date the employer closes its worksite. However, as of the date the employer closes its worksite, employees are no longer eligible for paid sick leave pursuant to the FFCRA.

What documentation should an employer keep if its employee takes paid sick leave or expanded family and medical leave pursuant to the FFCRA?

Employers may require its employees provide appropriate documentation in support of taking leave, including: the employee’s name, the qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. This documentation may include a copy of any Federal, State or local quarantine or isolation order related to COVID-19 or written documentation from a health care provider. The employer should keep all documentation in order to claim a tax credit under the FFCRA. The Department of Treasury intends to issue a guidance with more information about claiming the tax credit this week.

May an employee take paid sick leave or expanded family and medical leave intermittently?

Yes, an employer may allow an employee to take intermittent leave, if they are unable to telework their normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act.  However, unless the employee is teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments.

We will continue to monitor new developments and work to keep you advised as new or corrected information becomes available. If you have any questions, please contact a member of the Rhoades McKee COVID-19 Legal Response Team.

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