The Department of Labor has continued to issue guidance on the Families First Coronavirus Response Act (FFCRA) that took effect on April 1, 2020. We first told you about this new law here, after it was enacted on March 18, 2020. Since then the DOL has not only updated its FAQs, which are now up to 79 and can be found here, but it also issued voluminous temporary regulations that can be accessed here. In addition, we have previously advised you about the process for (1) documenting the leaves sought by employees and (2) obtaining tax credits as set forth by IRS, which you can find here. Given the breadth of DOL’s updated guidance we cannot fully address every topic in this e-alert, but have instead endeavored to highlight some of the key developments. We urge you to review these highlights as well as the guidance itself, as the DOL has not only clarified and expanded the application of the FFCRA but it has also once again revised some of its prior instructions.
Reasons for Paid Leave
The DOL FAQs and regulations clarify the reasons for which employees may qualify to take leave under the Emergency Paid Sick Leave Act (EPSL) and the Emergency Family Medical Leave Expanded Act (EFMLA). Remember that in order to be eligible for paid leave, the employee must be unable to work at the worksite or telework due to one of six qualifying reasons.
- Subject to a Federal, State, or Local Quarantine or Isolation Order: includes shelter-in-place or stay-at-home orders issued by any Federal, State or local government that causes an employee to be unable to work (or telework) even though the employer has work that the employee could perform but for the order. An employee may not take paid sick leave for this qualifying reason if the employer does not have work for the employee as a result of a shelter-in-place or a stay-at-home order.
- Health Care Provider Advises Self-Quarantine: the DOL explains that an employee qualifies for paid leave when s/he has been advised by a health care provider to self-quarantine because the employee has, or is particularly vulnerable to COVID-19.
- Experiencing Symptoms of COVID-19 AND Seeking a Medical Diagnosis: the DOL describes symptoms broadly to include fever, dry cough, shortness of breath or other COVID-19 symptoms identified by CDC. Paid sick leave taken for this reason is limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis – such as time spent making, waiting for, or attending an appointment for a test for COVID-19.
- Caring for a Quarantining or Isolating Individual: the individual being cared for is defined as an employee’s immediate family member, a roommate, or similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person. Not surprisingly, the regulations exclude persons with whom employees have no relationship.
- Caring for a Child Whose School has Closed or Child Care Provider is Unavailable: As we noted in our webinar last week, the DOL defines “son or daughter” to include children under 18 years of age, and children age 18 or older who are incapable of self-care because of a mental or physical disability. The regulations also define a “place of care” broadly to include day care facilities, preschools, homes, summer camps, and summer enrichment programs. A school is considered closed when the physical location is closed, even if online instruction or distance learning is being provided. The regulations further expand the definition “child care provider” to include uncompensated, unlicensed individuals, such as a family member, friend, or neighbor who regularly cares for the child. Finally, the regulations also advise that an employee generally may not take such leave if another suitable individual such as a co-parent or co-guardian is available to provide care to the employee’s child needs.
- Experiencing any other Substantially Similar Condition Specified by Secretary of Health and Human Services: To date, no qualifying conditions have been identified. As such this reason remains a mystery.
Definition of Telework
The term “telework” means work the employer allows an employee to perform while the employee is at home or isolating at a location other than the normal workplace. The regulations clarify that an employee is able to telework if:
(a): The employer has work for the employee to perform;
(b): The employer permits the employee to perform work from the location where the employee is quarantined or isolated; and
(c): There are no extenuating circumstances that prevent the employee from performing that work.
In an effort to explain (c), the regulations provide as an example the hypothetical situation where an employee qualifies for paid leave because she is subject to a quarantine order that requires her to isolate at home. If that employee meets (a) and (b), but cannot telework due to a power outage, the employee would be eligible for paid sick leave during the period of a power outage—i.e. an extenuating circumstance that prevents the employee from performing telework. Likewise, an employee who is waiting for the results of a COVID-19 test is able to telework, and, therefore, may not take paid sick leave, if: (a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is waiting; and (c) there are no extenuating circumstances, such as serious COVID-19 symptoms, that may prevent the employee from performing that telework.
Employee Eligibility Under the EFMLA
An employee may be eligible for EFMLA leave if s/he was on the employer’s payroll for the 30 calendar days immediately prior to the day that the employee’s leave would begin. The DOL regulations further provide that an employee who is laid off by an employer on or after March 1, 2020, will also also considered to have been employed for at least 30 calendar days, provided the employer rehires the employee on or before December 31, 2020, and the employee had been on the employer’s payroll for at least 30 of the 60 calendar days prior to the date the employee was laid off.
Coordination of the EPSL, EFMLA and Employer’s Paid Leave Policies [PRIOR GUIDANCE REVISED]
Paid sick leave under the EPSL is in addition the employee’s other leave entitlements. Employers may not require an employee to use provided or accrued paid vacation, personal, medical, or sick leave before the paid sick leave. Employers may also not require an employee to use such existing leave concurrently with EPSL paid sick leave. But if the employer and employee agree, the employee may use preexisting leave entitlements to supplement the amount s/he receives from paid sick leave, up to the employee’s normal earnings.
The first 10 days of EFMLA are unpaid. However, the employee may elect to use either EPSL or the employer provided paid leave during that time. After the first two workweeks (usually 10 workdays) of EFMLA, the employer may require that employees take concurrently for the same hours, EFMLA and existing leave that is available under the employer’s policies. If an employer does require the employee to take concurrent leave, the employer must pay the full amount to which the employee is entitled. After the employer’s paid leave is exhausted, for subsequent periods of EFMLA, the employer must pay the employee 2/3 of his or her pay, up to $200 per day and $10,000 in the aggregate (for the 10 weeks of paid EFMLA).
Note, that the employer is not entitled to a tax credit for any paid sick leave that is not required to be paid or exceeds the limits set forth under the EPLA and/or EFMLA.
Exclusion of Anyone Employed at a Health Care Facility
Under EFMLA and EPSL an employer may exclude health care providers from coverage. The DOL has clarified that health care provider includes anyone working at a broad range of health care related facilities, including any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing or pharmacy. This definition also includes any individual employed by an entity that contracts with any of these institutions to provide services or to maintain the operation of the facility. It further includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. The DOL, however, does caution employers to “be judicious when using this definition to exempt health care providers” so as to minimize the spread of COVID-19.
Exclusion of Emergency Responders
Employers may also exclude emergency responders from the application of the FFCRA. Emergency responder is defined as anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes, but is not limited to, military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. As with the health care provider exemption, the DOL cautions employer to be “judicious” when exempting personnel under this definition.
Total Weeks of Leave Allowed under EFMLA
The regulations confirm that any leave an eligible employee takes under EFMLA counts towards the total 12 workweeks of FMLA leave available to an employee for the applicable 12 month period.
Intermittent Leave When Working at the Worksite or Teleworking
Employees who continue to report to a worksite may take child care related leave intermittently when the employee and employer agree to do so. Where the employee is taking paid leave for any of the other five reasons, such as the employee’s own COVID-19 diagnosis, or caring for another with such a diagnosis, the employee must use the paid sick leave consecutively until there is no longer a qualifying reason supporting the leave, or the leave is exhausted.
When employees are able to telework, the employer and employee may agree that the leave can be used intermittently for any qualifying reasons under the FFCRA. Such leave may be taken in any increment agreed to by the employee and employer. The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs through such intermittent leave agreements.
Small Business Exemption
A limited exemption may be available to employers, including a religious or nonprofit organization, with fewer than 50 employees. This exemption is only available if the employee is taking leave under either the EPLA or EFMLA related to the closure of a school or child care unavailability. The exemption from the child care related paid leave is available if an authorized officer has determined that:
- The leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business or responsibilities; or
- There are not sufficient workers who are able, willing or qualified and available to provide the services by the employee requesting leave under the above provisions.
Importantly, the regulations indicate that this exemption must be evaluated on a case by case basis at the time an employee requests this leave. In other words, employers should not make a one-time election to opt out of the paid sick leave based on this exemption.
Eligibility for FFCRA Leave where Employee is also Receiving Workers’ Compensation or Disability Benefits
If an employee receives workers’ compensation or temporary disability benefits because the employee is unable to work, the employee may not take paid leave under the EPSL or EFMLA. However, if the employee were able to return to light duty and a qualifying reason subsequently prevents him/her from working, s/he may take EPSL or EFMLA as the situation warrants.
Documentation to Support the Leave/Tax Credit
As we discussed in our prior e-alert, documentation must be retained in order to support the tax credit under the FFCRA. The DOL regulations add that an employer is not required to provide leave if materials or information sufficient to support the applicable tax credit have not been provided by the employee.
The DOL has provided a grace period until April 17, 2020, during which it will not take enforcement measures against an employer, provided the employer has taken certain reasonable, good faith steps to comply with the Act. After April 17, 2020, however, the DOL reserves the right to retroactively enforce violations back to April 1, 2020 (the effective date of the FFCRA) where an employer has failed to remedy its violations.