DOL States That Employees on Furlough or Layoff Are Not Eligible for FFCRA Paid Sick Leave or Expanded FMLA

DMEC StaffLegislative Updates

DOL Publishes Additional FAQs, Highlighting That Employees on Furlough or Layoff Are Not Eligible for FFCRA Paid Sick Leave or Expanded FMLA

By Patricia Anderson Pryor

Jackson Lewis P.C.

The Department of Labor issued additional FAQ’s on Mar. 26, 2020. They now offer 37 FAQ’s on how the paid sick leave and expanded FMLA leave under the Families First Coronavirus Response Act (FFCRA) will apply. The leave obligations begins Apr. 1, 2020.

As more and more employers are required to shutdown due to state orders or layoff employees due to business concerns, a frequently asked question is whether the employees impacted by these closures and layoffs will still be eligible for paid sick leave and paid FMLA leave under the FFCRA. According to the FAQ’s issued by the DOL, they will not as evident by the following questions and answers:

Question: If my employer closes my worksite on or after Apr. 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

Answer: If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility.

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

Answer: 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. You should contact your state workforce agency or state unemployment insurance office for specific questions about your eligibility. Here is additional information about state eligibility.

In addition to several FAQ’s on the impact of layoffs and furloughs, the FAQ’s also address what documentation employers should request, whether the paid sick leave and paid FMLA can be used intermittently, and whether other employer-offered paid leave can be used concurrently with that required by FFCRA.

***This article originally appeared on the Jackson Lewis’ Disability, Leave & Health Management blog and was reposted on the DMEC website with their permission.***