Furloughed Employees Returning to Work: Your Rights Under the Families First Coronavirus Response Act

In earlier LR What You Need to Know Now postings here and here, we discussed the Families First Coronavirus Response Act. Under this Act, eligible employees of covered employers have access to extended sick leave and family and medical leave benefits if they are personally affected or need to take care of a family member affected by COVID-19 or are caring for a child whose place of care is closed due to COVID-19.  A reminder that this federal law applies only to employers with less than 500 employees and other exemptions may also exempt otherwise eligible employers from being required to provide this leave, such as the health care provider exemption.  See this LR What You Need to Know Now for information on applicable state leave laws.

On July 20, 2020, the U.S. Department of Labor (“DOL”) clarified eligibility for paid leave under the Act specifically for furloughed employees of covered employers returning to work.

The new guidelines specify that employees returning to work after being furloughed have a right to utilize the paid sick leave and the expanded family and medical leave provided by the Act if they meet the other general terms of eligibility and have not otherwise exhausted their leave prior to the furlough.

For paid sick leave, the guidelines state that the Act guarantees a maximum of two weeks (80 hours) of leave for employees who are personally affected or are responsible for caring for an individual who is affected by COVID-19. In a situation where an employee used only part of the 80 hours of paid sick leave before being furloughed, that employee is entitled to use the remainder of the hours upon returning to work.

Additionally, the guidelines state that the Act guarantees up to 12 weeks of expanded family and medical leave. The DOL specified that if an employee filed for this type of leave before being furloughed, that employee’s leave was effectively “paused” and the number of weeks the employee was furloughed do not count as leave. For example, if an employee left on leave under the Act for four weeks and then was furloughed, for any period of time, upon returning to work that employee would still be eligible for up to eight more weeks of leave.

The DOL guidelines specify that an employer’s attempt to put an employee back on furlough, after an employee has returned to work and then requested to take leave under this Act, may be deemed a discriminatory or retaliatory act.

The benefits provided by the Act are set to last through December 31, 2020. LR What You Need to Know Now updates will continue as we track these rapidly evolving guidelines.  Follow LR on LinkedIn to stay up to date.