• For an employee seeking Emergency Sick Paid Leave, an employer must maintain records supporting the need for the leave that would include the employee’s name, 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.

• Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised the employee to self-quarantine. "For example, this documentation may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19."

• If an employee takes expanded FMLA leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, the employer must require the employee to provide appropriate documentation in support of the leave, just as an employer would for conventional FMLA leave requests. "For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason."

• The DOL's updated guidance also clarifies how to determine whether an employee is unable to telework under the new paid leave provisions of the FFCRA.

• The guidance states that an employee may "telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA."

• An employee is unable to telework "if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework."

• Importantly, the DOL advises, "If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule . . . Of course, 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 DOL advises that intermittent leave is generally available under both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

• Paid leave may be taken intermittently if the employer agrees to allow an employee to take paid leave intermittently and if the employee is unable to telework his or her normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. If an employee is prevented from teleworking his or her normal schedule of hours because of his or her need to care for the employee's child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employer and employee may agree that the employee can take expanded family medical leave intermittently while teleworking. The employee may take intermittent leave in any increment, provided that the employee and the employer agree.

• Here is an example of how intermittent paid leave could play out: If the employer and employee agree on a 120-minute increment, the employee could telework from 1:00 PM to 3:30 PM, take leave from 3:30 p.m. to 5:30 p.m., and then return to teleworking.The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the DOL is supportive of such voluntary arrangements that combine telework and intermittent leave.

• The scenario is similar if an employee and employer agree to allow an employee to take intermittent leave under the expanded FMLA: An employee may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while the employee's child is at home because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of the employee's leave.

• Intermittent leave for employees who are physically present at the workplace is only available in certain circumstances. Unless the employee is teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments.

• If, prior to the FFCRA’s effective date, the employer sends an employee home and stops paying the employee because it does not have work for the employee to do, the employee will not get paid sick leave or expanded family and medical leave, but the employee may be eligible for unemployment insurance benefits. 

• If the employer closes after the FFCRA’s effective date (even if the employee requested leave prior to the closure), the employee will not get paid sick leave or expanded family and medical leave, but the employee may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.

• If the employer closes while an 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 you used before the employer closed. As of the date the employer closes the worksite, the employee is no longer entitled to paid sick leave or expanded family and medical leave, but the employee may be eligible for unemployment insurance benefits. This is true whether the employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. 

• If the employer furloughs an employee because it does not have enough work or business for the employee, the employee is not entitled to then take paid sick leave or expanded family and medical leave. An employee may be eligible for unemployment insurance benefits in this circumstance. 

• If the employer closes a worksite on or after April 1, 2020 but tells employees that it will reopen at some time in the future, employees are not entitled to take paid sick leave or expanded family and medical leave during the limited closure. The employee may be eligible for unemployment insurance benefits in this circumstance. This is true whether the employer closes the worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive.

• If an employer reduces an employee's scheduled work hours, the employee cannot use paid sick leave or expanded family and medical leave for the hours that the employee is no longer scheduled to work.

• If an employer provides group health coverage that an employee elected, the employee is entitled to continued group health coverage during the employee's expanded family and medical leave on the same terms as if the employee continued to work. If the employee is enrolled in family coverage, the employer must maintain coverage during the expanded family and medical leave. The employee generally must continue to make any normal contributions to the cost of the health coverage. 

• The DOL's guidance clarifies that an employer and an employee may agree to supplement the amount an employee receives from paid sick leave or expanded family and medical leave under the FFCRA, up to the employee's normal earnings, with preexisting leave. "For example, if you are receiving 2/3 of your normal earnings from paid sick leave or expanded family and medical leave under the FFCRA and your employer permits, you may use your preexisting employer-provided paid leave to get the additional 1/3 of your normal earnings so that you receive your full normal earnings for each hour."

• The employer cannot implement a policy that requires the supplementation of the amount an employee receives in FFCRA paid leave with the employee's accrued paid leave. Such an agreement must be between the employer and the employee.