US DOL Issues Additional Guidance on Families First Act Implementation, Focusing on Furloughs and Worksite Closures

Written By SARAH Fabian

The US Department of Labor (DOL) issued additional guidance on implementation of the new FFCRA.  We urge all employers to thoroughly read the expanded question and answer guidance, found here.

Among other things, these new Q&As address issues particularly relevant to Guam employers who are more likely to furlough employees (rather than lay them off) in order to save money and provide much-needed benefits to Guam employees. Specifically, several important questions were answered that apply to many Guam employers, as follows: 

23. If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?  

No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, 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 is 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. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.

24. If my employer closes my worksite on or after April 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?

No. 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. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

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. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

26. 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. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.

27. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, 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. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

28. If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work? 

No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.

You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced (see Question 5).

To recap:

Eligibility in the event of worksite closures

  • If an employee’s worksite closed before April 1, 2020, an employee is not entitled to take paid sick leave or expanded family leave benefits, whether the worksite closure was due to lack of business or because it was required to close pursuant to a federal, state, or local directive.

  • If an employee’s worksite is closed on or after April 1, 2020, but before the employee takes paid sick or family leave, the employee is entitled to be paid for time taken prior to, but not after, the worksite closure, whether the worksite closure was due to lack of business or because it was required to close pursuant to a federal, state, or local directive.

  • If an employee’s worksite closes while the employee is on paid sick leave or expanded family leave, the employee is entitled to be paid for any time taken prior to, but not after, the worksite closure, whether the worksite closure was due to lack of business or because it was required to close pursuant to a Federal, State, or local directive.

Eligibility in the event of a furlough

  • If an employer is open but furloughs an employee because the employer “does not have enough work or business” for the employee, the employee is not entitled to take paid sick leave or expanded family leave unless another qualifying reason applies.

  • If an employer closes a worksite temporarily after April 1, 2020 but promises to reopen at some time in the future, an employee is not entitled to use paid sick or paid family leave during the period of the worksite furlough, no matter how brief the worksite closure and regardless of whether the closure is due to lack of business or because it was required to close pursuant to a Federal, State, or local directive. When the employer reopens and the employee resumes work, if before December 31, 2020, the employee is then eligible for paid sick leave or expanded family leave.

Reductions in hours of work

  • Employees may not use paid sick leave or paid family leave to “make up” for time when an employer cuts hours from their schedule, even if the reduction in hours is “somehow related to COVID-19.”  Only a specific COVID-19 qualifying reason entitles an employee to the use of paid leave.

Additional Links & Resources from the US DOL

SARAH Fabian
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