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DOL Issues Additional Guidance on Paid Sick Leave and Expanded Family and Medical Leave – “Shelter in Place” Does Not Trigger PSL or EFML Benefits - Cornell Smith Mierl Brutocao Burton, LLP

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DOL Issues Additional Guidance on Paid Sick Leave and Expanded Family and Medical Leave – “Shelter in Place” Does Not Trigger PSL or EFML Benefits


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CLIENT ALERT: March 30, 2020 – DOL Issues Additional Guidance on Paid Sick Leave and Expanded Family and Medical Leave -Shelter in Place Order Does Not Trigger Paid Sick Leave or Extended FMLA Leave Benefits.

As expected, the Department of Labor (DOL) has issued additional guidance on whether employees are able to receive paid sick leave or expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA), which takes effect on April 1, 2020.  The updated guidance, which the DOL appears to be continuously updating, can be found here.

The new guidance is important for employers as the DOL has now taken the position that employees whose employers who have closed their place of business as a result of a “Federal, State, or local directive” are not eligible for paid sick leave or expanded family and medical leave under the FFCRA.  Paid sick leave and expanded family and medical leave are also not available to employees who have been furloughed because their employer “does not have enough work,” even though their employer remains open.  This means that employees of businesses that have been closed as a result of recent “shelter in place” orders that have been implemented in state and local jurisdictions throughout the country, including the City of Austin, Travis, Williamson, and Hays Counties, are not entitled to paid sick leave or expanded family and medical leave under the FFCRA unless they meet the other qualifying reasons for such leave.

This prohibition for paid sick leave and expanded family and medical leave applies regardless of whether (1) the closure occurred before, on, or after April 1, 2020; (2) the closure occurred while the employee is on paid sick leave or expanded family and medical leave (the employer must pay for any paid sick leave or expanded family and medical leave used prior to the closure); (3) the employee is furloughed; or (4) the closure is only temporary.  Under each circumstance, an employee may seek unemployment insurance benefits, but may not receive paid sick leave or expanded family and medical leave under the FFCRA.

This lack of availability of paid sick leave or expanded family and medical leave is not limited to office closures, either.  The DOL has also advised that employees whose hours are reduced may not use paid sick leave or expanded family and medical leave for the hours that they are no longer scheduled to work.  The DOL’s reasoning is that if an employer reduces an employee’s work hours due to unavailability of work, the employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19.

The firm’s attorneys are continuously monitoring developments and additional guidance from the Department of Labor.  A summary of the FFCRA and DOL guidance, continuously updated by the firm’s attorneys, can be found here.

If you have any questions, please contact one of our attorneys.