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DOL Clarifies Virus-Related Leave Policy for Telework, Furloughs

March 27, 2020, 8:08 PM

Businesses that temporarily shutter operations or furlough employees without terminating them will not be required to provide paid sick leave and family leave under the coronavirus-relief measure President Donald Trump signed into law earlier this month, the Labor Department said.

The department’s Wage and Hour Division on Friday updated question-and-answer guidance it released earlier in the week. The move was meant to clear up numerous questions employers and workers have raised about the new mandates, which take effect April 1.

Employers that close their workplaces before April 1—because they don’t have work for employees to perform or they are under a government-issued order—will not be subject to the paid-leave mandates in the Families First Coronavirus Response Act (Public Law 116-127), the division said in the updated guidance. Furloughed employees also will not be entitled to the law’s expanded leave provisions, but may be eligible for unemployment insurance benefits, the agency said.

The Labor Department first posted question-and-answer guidance on Tuesday to address pressing compliance issues in advance of publishing rules to implement the law. The regulations are expected to be released by April 1. Companies across the country are looking for the department to offer more detail on the upcoming rules to help them make time-sensitive decisions on whether and how to reduce their workforces amid the sharp economic downturn triggered by the novel coronavirus’ spread.

Generally, the new law requires businesses with fewer than 500 employees nationwide to give some workers two weeks of virus-related paid sick leave, along with 10 weeks of partially paid family leave to care for a child whose school or daycare is closed due to the pandemic.

Still unresolved include how a business with fewer than 50 employees can qualify for an exemption to the leave requirements, and which health-care providers and emergency responders will be excluded. The division said it will continue to issue guidance on a rolling basis as it works to finalize the rules by the April 1 deadline.

Telework, Intermittent Leave

The department also attempted to clarify how paid-leave coverage will apply to teleworking employees.

For instance, a worker is eligible for paid sick leave under the new law if an employer permits teleworking to limit the potential for infection in the workplace but the worker isn’t able to perform his or her job due to a coronavirus-related reason, the agency said. Teleworking employees who are unable to perform their tasks due to their child’s school or daycare being closed also are entitled to expanded family leave, which covers two-thirds of a worker’s typical pay.

However, “to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available,” the WHD wrote.

Employer and worker groups’ continued push for clarity on the coming regulations underscores how paid leave considerations while teleworking are a thorny legal issue for the public to interpret.

“It would be helpful to get information on who gets to make the ultimate call on whether an employee can telework,” said Jeff Nowak, an attorney with management-side law firm Littler Mendelson in Chicago. “The FAQs leave open the question—at what point can an employee legitimately claim they cannot telework? That is going to be very difficult for DOL, to issue guidance that draws a clear line.”

Worker advocates, such as Vasu Reddy at the National Partnership for Women & Families, argue teleworkers’ claim that they’re unable to work because of childcare should be enough to qualify for leave.

“It’s such an individualized personal circumstance,” said Reddy, the group’s senior policy counsel for workplace programs. “I would say that in order for this to be as protective as possible, in order for people to have their childcare needs met while also having the public health-care needs met, if the employee attests that they’re unable to telework, then that should be enough for leave. How the department will actually land on that, I don’t know.”

Teleworking employees will be allowed to take intermittent paid sick leave and family leave under the new law, the agency said in the updated guidance. Intermittent leave can be taken in any increment, so long as the employee and employer agree to the terms.

—With assistance from Chris Opfer

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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