As of lately, more and more workplaces are reopening. Reopening amidst a pandemic can cause not only distress but also uncertainty around entitlement, furlough and more. Fortunately, guidance on return-to-work has been issued by the U.S. Department of Labor (DOL) for employers and employees concerning the Families First Coronavirus Response Act (FFCRA).
The DOL’s new guidance clarifies the situation around employees who had to use FFCRA leave and are returning to work after caring for a family member who had been advised to self-quarantine because of COVID-19 symptoms. As per the DOL, employees are entitled to return to their same or equivalent position after returning to work from paid FFCRA. Given the current situation of the pandemic however, if an employer is concerned that the employee will put others at-risk, they may be able to bring the employee back to work in a position with less interaction or require them to telework. The employer may also require that the employee take leave until they’ve tested negative for COVID-19, however employers should be mindful of the DOL’s guidance, the Equal Employment Opportunity Commission (EEOC)’s guidance and adhere to the Americans with Disabilities Act (ADA).
Furlough and FFCRA Leave Entitlement
The DOL’s guidance makes clear that if an employee used two weeks (80 hours) of paid sick leave under the FFCRA before they were furloughed, they can’t use additional leave under the FFCRA once they go back to work. Under the FFCRA, employees are limited to a total of 80 hours of paid sick leave. The guidance clarifies that if an employee took less than 80 hours of leave before the furlough, they would be entitled to use the rest after the furlough (if they had a qualifying reason).
The new guidance also provides insight on employees who used the expanded FMLA before being furloughed. In the example provided, the employee used four weeks of leave before being furloughed and was entitled to use their remaining leave (i.e. eight weeks) upon returning to work for a qualifying reason. Under the FFCRA, eligible employees are entitled to up to 12 weeks of expanded family and medical leave. Since an employee’s reason for leave may have changed during the furlough, employers should treat a post-furlough request for leave as a new leave request, provided they receive the proper documentation.
No Discrimination or Retaliation
The DOL also addresses discrimination or retaliation against employees who are brought back after being furloughed because their workplace closed due to a state quarantine order. Businesses looking to recall employees are not allowed to extend an employee’s furlough after the order is lifted because their employee needs leave under the FFCRA to care for their children. The DOL states, “employers may not discriminate or retaliate against employees (or prospective employees) for exercising or attempting to exercise their right to take leave under the FFCRA.”
We understand that managing leaves and reopening a workplace during a pandemic is extremely challenging. That's why we hope that this guidance helps employers stay on track, make legally responsible decisions and can help their employees along the way.