On July 20, 2020, the DOL updated its questions and answers related to the Families First Coronavirus Response Act (FFCRA). The DOL frequently revises its guidance by adding additional questions and answers as it deems necessary.
In this revision, the DOL added questions 94 through 97, which address the following topics:
- Employees who take FFCRA leave in order to care for a sick relative are entitled to be restored to the same or equivalent position upon return. However, such employees may have been exposed to COVID-19 themselves and may be temporarily assigned duties that minimize interactions with other workers, or required to telework. In addition, employees may be subject to other employer requirements, such as a requirement to telework or take leave until they can demonstrate that they have tested negative for COVID-19. However, the agency cautions that they cannot be forced to telework or be tested for COVID-19 simply because the employee took leave under the FFCRA.
- If an employee took 80 hours of FFCRA sick leave (the maximum amount of paid sick leave allowed under the FFCRA) before they were furloughed, then they would not be entitled to additional FFCRA sick leave upon return to work.
- On the other hand, if an employee took four weeks of expanded FMLA leave under FFCRA before going on furlough, then they may be entitled to use the remainder of this leave (up to twelve weeks) upon return to work. The time spent on furlough does not count as expanded FMLA time.
- Employers cannot extend furloughs just because an employee needs to take FFCRA upon return to work. The agency reminds us that employers cannot discriminate or retaliate against employees who use or need to use FFCRA leave.
This additional information provides insight into how the DOL views certain situations that may come up in regards to FFCRA leave. Employers should review this guidance to ensure that they are adequately administering their employees’ leaves.