Time Sensitive Information for Employers in New York State | March 2020

DOL ISSUES CLARIFICATION ON TEMPORARY ENFORCEMENT OF FFCRA

COVID-19 EMPLOYMENT ALERT INDEX This clickable index enables all of our previously released Employment Alerts related to COVID-19 at your fingertips when you need it. Click the buttons below for previous Alerts. Time Off for the Coronavirus Federal Law Expansion of Benefits for COVID-19 FFCRA Model Notice

In advance of issuing implementing regulations, the United States Department of Labor has just issued additional guidance for employers regarding obligations under the Families First Coronavirus Response Act (“FFCRA”), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act . Both are effective April 1, 2020. The new guidance provides important information on some significant questions employers have been asking. ELIGIBILITY FOR BENEFITS AND TELEWORKING Employees are not eligible for FFCRA benefits if they are able to work on-site or telework. According to the guidance: An employee is considered to be unable to work if the employee’s employer has work for the employee and one of the COVID-19 qualifying reasons contained in the FFCRA prevents the employee from being “able to perform that work” either under normal circumstances at the employee’s normal worksite or by telework. If an employer permits teleworking and the employee is unable to perform his work or work the required hours because of one of the qualifying reasons for paid sick leave, the employee is entitled to take the paid sick leave. In addition, if the employee is unable to perform the telework or the required teleworking hours because the employee needs to care for his/her child whose school or place of care is closed or the child care provider is unavailable because of COVID-19, the employee is entitled to take expanded family and medical leave. To the extent an employee is able to telework while care for his/her child, leave under both federal laws is not available.   Note: If the employee and the employer agree that the employee will work the employee’s normal number of hours, but outside of the employee’s normally scheduled hours, then the employee is able to work and leave is not necessary unless a COVID-19 qualifying reason prevents the employee from working that schedule.

INTERMITTENT LEAVE AND TELEWORKING The updated guidance provides that if: An employer allows it and an employee is unable to telework his/her normal schedule of hours due to a qualifying reason under either leave law, the employee and the employer may agree that the employee may take the applicable leave intermittently while teleworking. Intermittent leave under this provision may be taken in any increment upon which the employee and employee agree. The guidance provides the example that if a 90 minute increment is agreed upon, the employee could telework from 1p.m. to 2:30 p.m., take leave from 2:30-4:00 p.m. and then return to teleworking.

INTERMITTENT LEAVE AND WORK AS USUAL JOB SITE The guidance on intermittent leave and job site work is very different. The paid sick leave for a qualifying reason related to COVID-19 must be taken in full day increments, with one exception noted below. Of the six qualifying reasons for paid sick leave, intermittent leave is permissible only in the case of one of those qualifying reasons – taking care of a minor child whose school or place of care is closed or whose child care provider is unavailable because of COVID-19. The purpose of this limitation is to prevent sick employees from coming to the workplace so the virus is not spread to others. In this case, the paid sick leave may be taken in less than a full work day to the extent the employer and employee agree. Intermittent leave may also be taken by the employee who is coming to the usual job site for leave under the expanded FMLA benefit, but only with the employer’s permission and when the employee and employer agree upon such a schedule. However, an employee who is NOT teleworking and needs to take the sick leave for any of the other 5 qualifying reasons, is required to continue to take paid sick leave each day until the employee either: Uses the full amount of paid sick leave; or No longer has a qualifying reason for taking paid sick leave.

USE OF PAID SICK LEAVE Employees who no longer have a qualifying reason for taking paid sick leave before the employee exhausts his/her paid sick leave, may take any remaining paid sick leave at later time, until December 31, 2020, if another qualifying reason occurs.

BENEFITS AND WORKPLACE CLOSURES If the worksite was closed PRIOR TO April 1, 2020, and the employer has stopped paying the employee, the employee is not eligible for benefits under the FFCRA, whether the employer closed for lack of business or due to a federal, state or local directive.  If the worksite was closed AFTER April 1, 2020, and before the employee has gone out on leave (even if the employee requested leave prior to the closure), the employee will not get paid for paid sick leave or expanded family and medical leave benefits, whether the employer closed for lack of business or due to a federal, state or local directive. If the worksite is closed 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 the employee used before the employer closed. As of the date of closure, the employee is no longer eligible for either federal benefit, whether the employer closed for lack of business or due to a federal, state or local directive. If an employer re-opens and the employee resumes work, the employee would then be eligible for paid sick leave or expanded family and medical leave as applicable.

BENEFITS AND FURLOUGHS If an employer’s business is open, but the employee has been furloughed because it does not have enough work or business for the employee, the employee is not entitled to any paid sick leave or expanded family and medical leave benefits.

BENEFITS AND REDUCED WORK HOURS If an employer reduces an employee’s work hours because it does not have work for the employee to perform, the employee may not use paid sick leave or expanded family and medical leave for the hours that the employee is no longer scheduled to work because the employee is not being prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19.

DOCUMENTATION According to the guidance, if an employee seeks leave under the Emergency Family and Medical Leave Act, an employer may require the employee to provide documentation in support of such leave, to the extent permitted under the certification rules for traditional FMLA leave requests.  FMLA Documentation Example: Providing a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email form an employee or official of the school, place of care or child care provider. Emergency Paid Sick Leave Act Documentation Example: The statute specifies no particular documents that the employee must provide to request leave, but the most recent DOL guidance suggest the employer must keep some kind of documentation, at the very least, to obtain the available tax credits.  As of this point in time, an employer who receives a request for sick leave under the Emergency Paid Sick Leave Act should ask the employee to provide the following information: Employee’s name A statement as to the qualifying reason why the leave is requested A statement that the employee is unable to work or telework for that reason The date(s) for which the leave is requested; and Documentation supporting the reason why leave is sought, which would vary depending on the reason for which leave is sought and might include an order of quarantine or a doctor’s note stating that the employee was advised by the doctor to self quarantine. Any documentation provided by an employee in support of either type of leave must be retained by the employer, including documentation of any leaves that run concurrently. This documentation will probably be needed to support any request by the employer for tax credits. Note: All existing certification requirements under the FMLA remain in effect if an employee is taking leave for one of the previously existing qualifying reasons under the FMLA and the employer is a covered employer for that purpose.

The guidance touches upon other topics, such as supplementation or coordination of FFCRA leave with an employer’s own leave policies and the impact of FFCRA on multi-employer collective bargaining agreement obligations. In addition, all New York State employers must still consider the interplay with the New York State law providing for benefits in some of these same circumstances. Before making decisions relating to these laws, employers should make sure they have the most up to date information as more guidance becomes available and upon implementing regulations being issued.

We will continue to update you as new developments unfold during this uncharted time. As always, we at O'Connell and Aronowitz are here to help you, your families, and your businesses in any way we can. Be well, be safe and be in touch.    Please contact Meredith Savitt if you have any questions or concerns.