Employers have — finally — gotten some guidance from the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) on important questions affecting the serious decisions they are facing. There are still no regulations for the Families First Coronavirus Response Act, but the WHD has been continually updating information it has provided in various guidance documents.
No Work, No Leave — Business Closures, Layoffs and Employee Eligibility for Paid Leave:
One of the biggest issues with which we have all been struggling is whether these paid leaves will apply to employees who are not working. If they have not been terminated, they are still technically employees, right? Employees on unpaid leave can be counted as employees for an employer’s coverage under the FMLA. But, if there is no work, how can there be a need for leave from work?
WHD has provided guidance on this point in an update to its “Questions and Answers” document found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
Specifically, in the answers provided to the questions posed in Nos. 23 – 24, employees who have been laid off — before or after April 1 — by their employers due to “lack of business or because it was required to close pursuant to a Federal, State or local directive” are not entitled to these paid leaves. In a blunt message to employees, it advises if “your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits.”
CAUTION: However, employers should not target employees for whom they believe may have a need for this leave — such as people with pre-existing health issues or employees with children under 18. Employee reductions should be based on legitimate business reasons only.
For updates on COVID-19 and new guidance provided by BrownWinick attorneys, please visit our COVID-19 Resource Page.