The United States Department of Labor (DOL) has revised its rules on emergency paid sick leave and the expanded family and medical leave provisions under the Families First Coronavirus Response Act (FFCRA). Among those revised rules are two clarifications of importance to dealerships:
- The DOL “reaffirms” that paid sick and extended family and medical leave may be taken only if the employee has a job to take leave from. This is called the work-availability requirement. The work-availability requirement means that an employee is entitled to the FFCRA leave only if the “but-for” reason of the employee’s inability to work is an FFCRA reason (e.g., being sick, caring for a sick family member or caring for a child whose school or child care provider is closed or unavailable due to the COVID-19 pandemic). For example, if the employee is not working because the employer furloughed the employee due to a COVID-19-related downturn in business, the employee has no work from which to take leave from. Consequently, that employee cannot take FFCRA leave. An employee taking leave from work to supervise a child whose school is closed for in-person instruction and who will be learning virtually satisfies the work-availability requirement and is eligible for FFCRA leave.
- The DOL “reaffirms” the employer-approval requirement for intermittent FMLA leave. While an employee may take intermittent emergency family medical leave under the FFCRA (which is consistent with pre-pandemic FMLA principles), the employee must still reach an agreement with his or her employer about the intermittent leave before the intermittent leave begins. An employee may take intermittent family leave only when his or her child’s school or childcare provider is closed or unavailable due to COVID-19 and the employer consents to the intermittent nature of the leave.
Also, the EEOC has updated its technical assistance document, “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” to:
- incorporate 18 questions and answers from its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” and a March webinar; and
- modify two existing Q&As to provide clarifications that reinforce prior EEOC statements about COVID-19 and the EEO laws.
The revised EEOC document serves as a useful guide to common issues involving COVID-19 and federal equal employment opportunity laws.