The U.S. Department of Labor issued on 3/26/20, additional guidelines which significantly limits the availability of the emergency paid sick leave (Emergency Paid Sick Leave) and expanded Family and Medical Leave (Emergency FMLA Leave) included in the Families First Coronavirus Response Act (FFCRA) to Puerto Rico employees laid off as a result of the lockdown mandated under Executive Order 2020-23 in connection with COVID-19.

According this new guidance (which is an expanded version of its original Q&A guidance published on 3/ 24/20), employees who work for employers that closed operations before April 1, 2020 (the effective date of the FFCRA) and stopped paying the employee because (a) it did not have work for the employee; or (b) was required to close pursuant to a Federal, State, or local directive will not be eligible to receive the Emergency Paid Sick Leave and the Emergency FMLA Leave benefits.  Consequently, it seems that this new guidance makes all Puerto Rico employees who were sent home on March 15 because their employer was forced to close operations as the result of the implementation of Executive Order 2020-23 ineligible to receive these benefits.

Likewise, the new guidance provides that the following employees will not be eligible to receive the FFCRA leave benefits:

• Employees who work for employers that closed the worksite on or after April 1, 2020, but before the employee takes the leave.

• Employees that are furloughed on or after April 1, 2020, even though his or her employer continues to operate.

• Employees who work for employers that closed the worksite on or after April 1, 2020, even when the employer tells the employees it will reopen at some time in the future. These employees will be eligible to the leaves prospectively upon reinstatement until December 31, 2020 when the leaves sunset.

• Employee who work for an employer that closes the worksite while the employee is on Emergency Paid Sick Leave and the Emergency FMLA Leave will not be eligible to these benefits as of the date the employer closes the worksite. However, the employer will be responsible for any leave payments owed before the worksite closes.

Additionally, employees that are assigned reduced work schedules for lack of work cannot use the Emergency Paid Sick Leave or the Emergency FMLA Leave to compensate for the missing hours. The DOL expressly states that, in these situations, the reason for the missing hours is not related to a COVID-19 qualifying reason, even if the reduction of hours is “somehow related to COVID-19″.  However, the DOL clarifies that employees that are not able to work their full schedule as the result of a COVID-19 qualifying reason will be entitled to the applicable leaves.

We will continue to monitor this DOL Q&A guidance and providing updates.

By: José F. Benítez, Member,

Labor and Employment Department

O’Neill & Borges LLC

For any questions or inquiries regarding this topic do not hesitate to contact us at info@oneillborges.com or your prime contact attorney at O’Neill & Borges.