September, 2020
FFCRA and PUA Eligibility as Schools Reopen; Tracking Teleworking Employees’ Hours

Dear Clients, Colleagues and Friends,

It has certainly been a year like we have never experienced before. Every person has been impacted in some way and we are not yet finished with this pandemic. The workplace is quite different than it was six months ago, and the pundits claim that it will never be quite the same. Certainly, we have seen many new developments in the world of employment law as well as new applications and interpretations of existing law. In this issue, we cover new USDOL guidance on the availability of the new FFCRA leave for employees whose children are returning to school, as well as guidance regarding the availability of unemployment benefits under different school reopening scenarios, and guidance regarding employers tracking hours of their employees who are working from home.

With Rosh Hashanah, the Jewish New Year, a few days away, all of us Moskowitz & Book would like to wish all of our friends, colleagues and clients a happy and healthy new year filled with much success, joy and blessing. We sincerely hope that this upcoming New Year will bring a swift end to the physical, emotional and economic suffering throughout the world.
DOL Publishes New FAQs Regarding FFCRA Eligibility as Schools Reopen

As the new school year begins, the U.S. Department of Labor (“DOL”) recently added three additional FAQs (#98-100) to answer questions on the applicability of the Families First Coronavirus Response Act (“FFCRA” or the “Act”) to employees whose children may be returning to school. FFCRA provides eligible employees with up to two (2) weeks of paid leave under the paid sick leave portion of the Act and up to twelve (12) weeks of unpaid and paid leave under the family and medical leave portion of the Act when their child’s school or care provider is closed for reasons related to COVID-19. 

The first FAQ (#98) asks whether an employee whose child is assigned to attend school in person during some days and learn remotely other days will be eligible for FFCRA leave. The DOL says that such employee is indeed eligible for FFCRA leave while the child is learning remotely, as long as the employee must care for the child and has no other suitable individual to assist with child care. The DOL further explains that, to the extent a child is required to remain home for remote learning, the child’s school is considered “closed” for the purposes of the FFCRA.

The second FAQ (#99) asks whether an employee who has opted for remote learning even though his or her child’s school remains open for in-person instruction will be eligible for FFCRA leave. The DOL says that such employee would not be eligible for FFCRA leave, even if the employee’s reason for choosing remote learning was to avoid possible COVID-19 exposure or the child’s potential to expose the family at home. Unlike the scenario in FAQ #98, the school is not effectively “closed” for the purposes of FFCRA. However, the employee may be eligible for FFCRA leave if the child is under a mandatory or precautionary order of quarantine, or is under self-quarantine at the direction of a health care provider.

 The third FAQ (#100) asks whether an employee whose child’s school will start the fall semester with remote learning but could later open for in-person learning will be eligible for FFCRA leave. The DOL says that under these circumstances, similar to the circumstances in FAQ #98, the school is considered “closed” and therefore the employee would be eligible to take FFCRA leave.

 As schools continue to monitor COVID-19 within the schools and their surrounding communities, these newly added FAQs from the DOL will help employees and employers to understand FFCRA eligibility during this time. 




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DOL Publishes Guidance on PUA Eligibility as Schools Reopen


The DOL published a report (“Report”) on August 27, 2020 addressing the impact of school reopening plans on eligibility for pandemic unemployment assistance (“PUA”). The Report examines three different scenarios to determine whether an individual who is a primary caregiver for a student is eligible for PUA.  Each scenario assumes that the individual is not eligible for other unemployment benefits, is not able to telework and is not receiving FFCRA or other paid leave benefits.

Scenario 1 discusses PUA eligibility if the school reopens through remote instruction only. Under such circumstances, the school is considered closed. If the individual is unable to work or is unavailable to work due to being the primary caregiver for a child learning remotely, the individual may be eligible for PUA. Additionally, if the individual is permitted to telework but cannot do so because of the student’s need for constant attention during remote learning, that individual is considered to be unable or unavailable to work and may also be eligible for PUA.

Scenario 2 discusses PUA eligibility if the school reopens according to a “hybrid” model, in which students attend class in-person on some days and learn remotely on other days. Under these circumstances, the school is considered closed only on the days that students must attend online classes. An individual caring for a child attending school in this scenario would be eligible for PUA on days that the child is learning remotely. The individual must report earnings, if any, from days of the week when he or she does work.

Scenario 3 discusses PUA eligibility if the school allows students to attend classes in-person or online. In such situation, the school is not considered closed. Thus, if the individual chooses remote learning instead of in-person learning for the student, then caring for that student would not cause the individual to be eligible to receive PUA benefits.

In all situations, if an individual continues to claim PUA benefits when he or she is ineligible for the benefits, he or she may face overpayment, penalties for fraud, and criminal prosecution.

For additional questions or concerns about the reopening of schools and its impact on FFCRA leave eligibility and/or PUA eligibility, please contact Chaim Book at cbook@mb-llp.com or Sheryl Galler at sgaller@mb-llp.com
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The DOL Issues Guidance for Employers to Track
and Pay for Employees’ Teleworking Hours

Teleworking quickly became the norm in 2020 across many industries because of the COVID-19 pandemic. Along with this new norm comes the employer’s responsibility to maintain oversight of the work hours of teleworking employees and compensate them accordingly. To address proper recordkeeping and compensation in the context of teleworking, the U.S. Department of Labor issued Field Assistance Bulletin No. 2020-5 on August 24, 2020 (“Guidance”).

The Fair Labor Standards Act requires employers to pay employees for all hours that employers have “actual or constructive knowledge” – that is, all hours that the employers know or have reason to believe – that their employees worked. This includes hours that employees spend working at home or other remote locations. 

An employer likely will have actual knowledge that an employee worked during the employee’s regular work schedule.  An employer is considered to have constructive knowledge of an employee’s other work hours if the employer should have known about those hours merely by exercising “reasonable diligence”. 

 An employer may exercise “reasonable diligence” by establishing a “reasonable process” for employees to track and report their time.  Employers should provide their employees with a time-tracking system, train them on using it, and not discourage or prevent employees from accurately reporting their time. Such employers generally will be required to pay employees only for their reported time. The employers generally will not be required to pay employees for any unreported time and will not be required to conduct any investigation to determine if employees failed to report any time worked. Of course, if employers are or become aware of time worked that was not reported, they would be required to pay employees for that time as well.

Employers should follow this Guidance for employees working onsite and offsite, including employees who are teleworking due to COVID-19 or other reasons. Specifically, it is best practice for employers to establish timekeeping systems for all of their employees, set policies for their use, train employees on how to use the systems, and enforce the proper and accurate use of such timekeeping systems.

If you have questions or concerns about tracking employees’ hours or the requirements of the Fair Labor Standards Act, please contact Chaim Book at cbook@mb-llp.com or Sheryl Galler at sgaller@mb-llp.com
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