Department of Labor issues further guidance on whether employers can layoff employees directly affected by the Coronavirus
As more and more employers are required to reduce their workforce due to the Coronavirus slowdown, many have asked whether they can include in the reduction in force an employee who is suffering from the effects of the virus and would otherwise have been entitled to paid sick leave under the new federal Families First Act.
Under the Families First Act, effective April 1, employees at businesses with less than 500 employees are entitled to 14 days paid sick leave if the employee is unable to work (in the office or remotely) because the employee is:
- suffering symptoms of the virus and seeking a diagnosis,
- required to stay at home to take care of a family member who has the Coronavirus, or
- required to stay at home to take care of a child who is home due to a school closure caused by the virus.
But the anti-retaliation provisions of the Act were not entirely clear as to whether the employee’s position was job-protected, in terms of whether the employer can include such an employee as part of a legitimate across-the-board reduction in force, and whether, if the employee is included in a reduction in force, does the employer still have to pay the employee the 14 days of sick leave?
The Department of Labor has now provided clarification on this question, by stating that yes, the employer can include such a person in the layoff and does not have to pay the employee the 14 days of paid sick leave.
In the FAQs, https://www.dol.gov/agencies/whd/pandemic/ffcra-questions, posted March 26, 2020, the Department of Labor stated as follows:
“24. If my employer closes my worksite on or after April 1, 2020 (the effective date of the [Act]), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?
No. If your employer closes after the [Act’s] effect 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.
25. If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?
If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date, your employer closes your worksite, you are no longer entitled to 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 the employer was required to close pursuant to a Federal, State, or local directive.
26. If my employer is open, but furloughs me on or after April 1, 2020, the effective date of the [Act], 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.”
The new FAQs also provided further guidance to employers on other issues regarding the Act, including confirming that an employer is permitted to ask the employee to provide documentation supporting the reasons why the employee is requesting such leave.