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Federal Paid Sick Leave provisions Q&A

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Most employer questions be found by reading the DOL guidelines which are being updated frequently https://www.dol.gov/agencies/whd/pandemic/ffcra-questions 

Common inquiries:

Q1)  What documents do employees need to give my employer to get paid sick leave or expanded family and medical leave? 

You must provide to your employer documentation in support of your paid sick leave as specified in applicable IRS forms, instructions, and information. (https://www.irs.gov/pub/irs-prior/i8994–2019.pdf

Your employer may also require you to provide additional in support of your expanded family and medical leave taken to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this may include a notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider. Your employer must retain this notice or documentation in support of expanded family and medical leave, including while you may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason. 

Please also note that all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA if required by your employer. 

Q2)  If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave? 

No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. 

Q3)  If I hire someone back on during this period, say April 3rd, can they then be eligible immediately for this sick pay rule?, and then on April 4 request the sick pay?  Of is there a vesting period before they can use it? 

For Paid Sick Leave: an employee is immediately eligible (there is no time on payroll requirement); For Family Medical Leave: the employee must be employed 30 calendar days, which is calculated as follows: 

You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020. 

If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period.   

Q4) If the employee is currently laid off, when I re-hire them, are they still considered full time employees if they were prior to being laid off?, or do they have to requalify as a full time employee going forward? 

Please check with Employment Security Department laws/rules are regarding this status question. The federal act does give guidance on calculating eligible hours for part time employees, but does not discuss rehire.   

Q5) Also, the language specifically mentions the Covid virus.   What if they have the measles, regular flu, common cold, etc.  Does this sick pay only cover Covid virus?  If so, how would they prove it? 

These are the only eligible causes. As you can see there is some ambiguity in 5 and 6, but generally must be COVID-19 related. See Documentation Question Above. 

1. Subject to a federal, state or local quarantine or isolation order related to COVID-19; 

2. Advised by a health care provider to self-quarantine due to COVID-19 concerns; 

3. Experiencing COVID-19 symptoms and seeking medical diagnosis; 

4. Caring for an individual ( not limited to just family members) subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns; 

5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or 

6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. 

Q6. When computing the 2/3 of an employee’s regular rate of pay, isn’t it true that this 2/3 rate can’t be lower than minimum wage? 

If so, it must be an amount no less than 2/3 of the individual’s regulator rate of pay for the hours he/she are normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage or the applicable state/local minimum wage.