Also on April 1, 2020, U.S. Senator Patty Murray (D-WA), ranking member of the Senate Committee on Health, Education, Labor and Pensions, and Congresswoman Rosa DeLauro (D-CT), Chair of the House Appropriations Subcommittee responsible for funding the DOL, urged the DOL to revise its previously published FAQs because they contradict the text and Congressional intent of the FFCRA by imposing additional requirements and restrictions on employees as follows:
The FAQs Require Certification Of The Need For Leave.
The DOL’s guidance (FAQs Nos. 15 and 16) states that employers may require employees to provide documentation in support of their need for leave, that employers should retain appropriate documentation in order to claim a tax credit for paying for leave taken under the FFCRA, and that employers need not provide leave if an employee has not provided materials sufficient to support the applicable tax credit. The letter states that the FFCRA does not impose any such requirement and that the DOL lacks authority to require certification in the absence of a congressional directive.
The FAQs Restrict What Qualifies As Being “Unable To Work”.
The DOL’s guidance (FAQ Nos. 18 and 23-27) states that an employee qualifies as being “unable to work” if the “employer has work for [the employee]” and “one of the COVID-19 qualifying reasons set forth in the FFCRA prevents [the employee] from being able to perform that work.” The DOL therefore states that if an employer reduces hours, furloughs employees, or closes its worksite for lack of business or pursuant to a federal, state, or local order, then its employees do not qualify as being “unable to work” since there is no work for them. Congress noted in its letter, “Nothing in the text of the FFCRA indicates the employer must have work for an employee to perform on any particular day for that employee to be able to qualify for paid leave on that day—nor does it give employers the authority to refuse their employees their statutory right to paid leave by not assigning them work, furloughing them, or closing a particular worksite. This inaccurate conclusion would allow all employers to evade the requirements of the Act at any point during this pandemic by informing employees that it does not have work for them to perform at the moment—thereby fully depriving them of a day, a week, or 12 weeks of paid leave.”
The FAQs Restrict An Employee’s Ability To Take Intermittent Leave.
The DOL’s guidance (FAQ Nos. 20, 21, and 22) states that an employee may take intermittent leave under the FFCRA only if his or her employer allows it. The letter states that the text of the FFCRA does not support this conclusion, and employees may not be prohibited from taking intermittent leave without employer consent. The requirement that employers agree to the use of intermittent leave is also written into the April 1 temporary rule, which may require revision to address Congress’s concerns.
Excludes Employees From Paid Leave by Expanding Definition of “Health Care Provider”.
The DOL’s guidance (FAQ Nos. 55 and 56) provides two different definitions of “health care provider”—first, to determine who can advise an individual to self-quarantine, and second, to determine which employees may be exempted from Paid Sick Leave and Emergency Family Leave by their employers.3 The letter states that the DOL must adopt one definition: that provided under the Family and Medical Leave Act (“FMLA”).
Fails To Clarify That “Shelter in Place” Orders Constitute A Qualifying Reason.
The DOL’s guidance fails to clarify that government “shelter in place” orders constitute “Federal, State, or local quarantine or isolation order related to COVID-19,” which qualifies an employee for paid sick leave under the FFCRA, and, to the contrary, indicates the opposite. The letter calls on the DOL to clarify that employees subject to such orders are entitled to paid sick leave under the FFCRA.4
The letter concluded by requesting that “DOL immediately revise its materials in accord with the text and congressional intent of the FFCRA . . . and to reflect such revisions in any regulations DOL promulgates.”