DOL PROVIDES ADDITIONAL GUIDANCE ON EMERGENCY FMLA AND PAID SICK LEAVE FOR BUSINESS REOPENING

On May 11, 2020, the Department of Labor (ÒDOLÓ) provided some additional guidance regarding when employees may take Emergency Family Medical Leave (ÒEMFLAÓ) and Emergency Paid Sick Leave (ÒEPSLÓ) under the Families First Coronavirus Act. The new guidance effectively limits an employerÕs ability to obtain information regarding leave requests or deny leave requests. The guidance also addresses the issue of summer childcare leave. The guidance includes the following:

Limiting EFMLA or EPSL Because an Employee Has Successfully Teleworked

  • Employers may only request limited information when an employee requests EFMLA or EPSL because of childcare concerns even if the employee has successfully teleworked since mid-March.

  • Employers may only ask an employee seeking EFMLA or EPSL because of COVID-19 school or childcare center closure to provide (1) the reason they are taking the leave or paid time off, (2) to submit a statement, either written or oral, that the employee is unable to work, and (3) to provide documentation that their childrenÕs school or childcare center is closed because of COVID-19.

  • The DOL stated that an employer should not consider whether an employee has successfully teleworked from mid-March in denying a request for EFMLA or EPSL for childcare concerns because this would likely lead to a wrongful denial of EFMLA or EPSL.

  • The DOL provided that an employee may develop the need to take EFMLA or EPSL because their childcare plans have become ineffective or their spouse may be returning to work after taking leave to care for their children.

  • Because of the risk that an employer might wrongfully deny a request to take EFMLA or EPSL, the DOL cautioned against questioning employees about how they had successfully teleworked since mid-March prior to requesting the EFMLA or EPSL.

Employee Seeking EPSL for Diagnosis of COVID-19 Symptoms

  • If an employee claims they are out of work because of a COVID-19 symptom, are seeking medical diagnosis and asks for EPSL, the DOL provided that an employee is only required to provide the employer with (1) a statement about the employeeÕs COVID-19 related symptoms and (2) a date for a COVID-19 test or doctorÕs appointment.

  • Employers may not require an employee to provide further documentation that they sought diagnosis or treatment to take EPSL after the employee provides this information.

  • By issuing this guidance, the DOL appears to have prohibited employers from limiting an employeeÕs EPSL request only to the time required to obtain a COVID-19 test. Employees only need to provide their COVID-19 symptoms and give the employer a date for their test or doctorÕs appointment and are not required to provide the employer with their COVID-19 test results or a doctorÕs note to obtain EPSL.

  • This does not prohibit an employer from disciplining an employee who unlawfully takes EPSL based on misrepresentations to the employer. For instance, an employer may require that an employee provide a doctorÕs note or negative COVID-19 test to return to work. If the employee presents a note that they did not have a COVID-19 positive test or that their doctor cleared the employee to return to work before the expiration of the requested EPSL leave, then an employer could discipline the employee for taking EPSL past the time required to obtain the COVID-19 test or doctorÕs diagnosis.

Summer Vacation and EFMLA and EPSL

  • The DOL stated that employees may not take EFMLA or EPSL when school, distance learning or other childcare ends for the summer.

  • Employees may take EFMLA or EPSL if the employeeÕs summer childcare provider Ð summer camp or other summer childcare program Ð was cancelled because of COVID-19.

Pannone Lopes Devereaux & OÕGara LLC employment attorneys will continue to provide updates and alerts as the DOL issues further guidance while states reopen their economies in Phase One and Phase Two. If you have questions, please contact PLDO Partner Matthew C. Reeber at 401-824-5105 or mreeber@pldolaw.com or PLDO Principal William E. OÕGara at 401-824-5117 or wogara@pldolaw.com.

In addition, you are invited to join Attorneys OÕGara and Reeber on Thursday, May 14, 2020 at 10 a.m. when they will be panelists during a free, one-hour webinar on Reopening The Economy, What You Need to Know for Your Business. To learn more and to register, click here.

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Employment Law Overview

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