By Francis T. Barnwell, Kathryn M. Hindman & Maryann Yelnosky
On April 1, 2020, the United States Department of Labor (DOL) issued temporary regulations clarifying employers’ obligations under the Family First Coronavirus Response Act (FFCRA). Two days later on April 3, 2020, the DOL added to its extensive FAQs providing further insight into its regulations. Prior Alerts on the statutory framework of the FFCRA, and the previous three sets of DOL FAQs can be found here.
Below, we have summarized important takeaways from the new regulations and the fourth set of questions and answers provided by the DOL.
1. What are the FFCRA’s paid leave mandates?
As a reminder and as detailed in our COVID-19 Resource Center and prior alerts, FFCRA contains two paid leave mandates:
Regular rate defined:
- The Emergency Paid Sick Leave Act (EPSLA) provides 80 hours (full-time employees) or “two weeks” (part-time employees) of paid leave at the greater of the employee’s regular rate or applicable minimum wage, to a maximum of $511 per day and a total of $5,110 for reasons discussed further below, but in a nutshell, related to whether the employee is unable to work or telework for reasons related to an isolation order or self-quarantine, and/or if the employee has symptoms of COVID-19 and seeking a diagnosis. If the need for leave is due to the employee being unable to work or telework because the employee is caring for an individual under quarantine, or their child’s school or place of care is closed or childcare is unavailable due to COVID-19, or some other substantially similar condition specified by the federal government (and not yet defined), EPSL is paid at 2/3 the greater rate of the employees regular rate or applicable minimum-wage to a maximum of $200 per day and a total of $2,000.
- The Emergency Family and Medical Leave Act (EPFMLA) allows employees to use the 12 weeks of Family Medial Leave Act (FMLA) (and grants such a leave to previously ineligible employees) if they are unable to work or telework because they have a bona fide need to care for a child because of COVID-19 related closure of a child’s school or child care facility, or the unavailability of a child care provider. After the first “10 days“ of unpaid FMLA the remainder of EPFMLA is paid at 2/3 of the employees regular rate, up to a maximum of $200 per day, and $10,000 in total.
The regular rate under FFCRA is not determined by looking at the workweek the employee uses the leave (as is typically required by the Fair Labor Standards Act (FLSA), but rather determined by either:
2. Which employers are covered?
- Looking at the average regular rate (all remuneration used for determining overtime) over a six-month lookback period or the entire period of employment, whichever is shorter; or
- Looking over a six-month lookback period or the entire period of employment, whichever is shorter, and dividing the average weekly regular rate by the number of hours worked each workweek.
The DOL regulations clarified that an employer must provide EPSLA and EPFMLA leave if it has 499 or fewer employees within the United States at the time the employee’s leave is to be taken. Once an employee is included in the count, they continue to be eligible for the remainder of their leave. The DOL also makes clear that employers must count employees on leave, temporary employees who may be jointly employed with another employer (regardless of whether the employer maintains the jointly employed employee on its payroll), and day laborers supplied by a temporary agency.
As discussed in early FAQ, two or more entities are generally separate employers unless they meet the “integrated employer” test under the regular FMLA test. If two entities are an integrated employer under the FMLA, then employees of all entities that make up the integrated employer count to determine employer coverage for EPSLA and EPFMLA purposes. Both of these tests are fact specific and rely on factors, including common ownership, management, business purpose, and day-to-day operations. Questions as to whether an employer should aggregate affiliated companies are complex and require more analysis with legal counsel.
- The Small Employer Business Exemption.
The DOL regulations confirm that an employer, including religious or nonprofit organizations, with the 49 or fewer employees, is exempt from providing FFCRA leave for childcare purposes under either EPSLA or EPFMLA when allowing such leave would jeopardize the viability of the business. Under the regulations, employers will need to make an individualized determination that certain employee’s request for such leave would jeopardize the viability of the business. To use this exemption, an authorized officer of the employer must determine one of the three criteria below:
- The leave requested would result in the business's expenses and financial obligations to exceed all business revenues and cause the small business to cease operating at a minimal capacity; or
- The absence of the employee or employees requesting leave would entail a substantial risk to the financial health operational capabilities of the business because of their special skills, knowledge of the business, or responsibilities; or
- There are no sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and the labor or services are needed for the small business to operate in a minimal capacity.
To elect the small business exemption, employers must document that an authorized officer made this determination and retain these records for their files. The DOL’s temporary regulations clarify that even if a small business believes it will meet this criteria, the business must still post and provide employees with their notice of the rights to leave under FFCRA.
3. Which employees are eligible and what are they eligible for?
Unless excluded as a health care provider or emergency responder, or exempt under the small business exemption (or fall under certain federal employee exemptions), the determination of whether an employee is eligible differs depending on the need for FFCRA leave:
EPSLA: All employees are eligible.
EPFMLA: All employees employed by the employer:
- for at least 30 calendar days prior to the commencement of the leave, or;
- laid off or otherwise terminated by the employer on or after March 1, 2020, and then rehired by the employer on or before December 31, 2020 (so long as the employee was on the employer’s payroll for 30 or more of the 60 calendar days prior the date the employee was laid off or terminated).
- Health care provider exclusion.
Employers may exclude from eligibility for both EPSLA and EPFMLA health care providers, defined broadly to include anyone employed at any doctor’s office, hospital, health care center, clinic, post secondary educational institution offering healthcare instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, and any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer or entity. The definition includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. The definition also includes any individuals employed by any entity that contracts with these institutions to provide services or maintain the operation of the facility. It also 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, test, drugs, vaccines, diagnostic vehicles, or treatments. It also includes any individual that the highest official of a state or territory determines as a “health care provider” necessary for that state’s response to COVID-19.
The regulations also provide that this definition is only applicable for determining employee eligibility for FFCRA, not for purposes of the definition of health care provider under traditional FMLA who may verify whether an individual has a “serious health condition.”
- Emergency responder exclusion.
Employers may also exclude emergency responders, defined broadly to include any employees necessary for transport, care, healthcare, comfort and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military National Guard, law enforcement officers, correctional institutional personnel, firefighters, physicians, nurses, public health personnel, EMTs, emergency medical services personnel, paramedics, emergency management personnel, 911 operators, 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. The definition also includes any individual whom the highest official of the state determines is an emergency responder necessary for that state’s response to COVID-19.
Notably, if a covered employer chooses not to avail itself of the exclusion for healthcare providers and/or first responders, it remains entitled to the 1:1 tax break under the CARES act.
4. How much leave can an eligible employee take?
- Employees are not entitled to leave when no work is available.
The regulations and the FAQ make clear that employees on other forms of leave, on furlough, lay-off, or who are terminated, are not eligible for EPSLA or EPFMLA. Likewise, if an employee would not have been scheduled to work, or the employer has no work available for the employee to complete, the individual is not entitled to FFCRA leave.
- Emergency Paid Sick Leave.
- Full time employees receive 80 hours of EPSL. Employees are “full time” if they meet one of two criteria:
- Their employer normally schedules them to work at least 40 hours each workweek; or
- They have no normal weekly schedule, and the average number of scheduled workweek hours (which includes leave hours) is at least 40 hours per workweek: over their entire period of employment; or the six-month period that ends when the employee takes EPSL, whichever is shorter.
- All other employees are “part time” and will receive a pro-rata amount of leave, depending on if they have a normal weekly schedule or not.
- Those with a normal weekly schedule receive an amount of EPSL that equals the total amount of hours worked in a 2 week period. For example, employees who work 20 hours will receive 40 hours of EPSL.
- Those with no normal weekly schedule: If at the time of hiring, there is an agreement on the average number of daily hours an employee will work, simply multiply that number by 14 to produce the amount of EPSL the employee is eligible to receive. Without such an agreement, the majority of employers will have to calculate the total hours the employee worked in the 6-month period before the leave (or the entire period of employment if shorter than 6-months), divide that number by the number of calendar days in the period, then multiply the result by 14. The DOL provides an example: Employee works 520 hours in 6-month period which equates to ~2.857 hours/day, multiplied by 14, equals 40 hours of EPSL.
- Emergency Paid FMLA for child school/childcare closure or unavailability due to COVID-19.
The FFCRA states that the first ten days of emergency expanded FMLA is “unpaid leave.” DOL’s regulations change this terminology to the first two weeks. The DOL’s rationale is that for most employers, two weeks of work is usually a ten-day period.
The regulations also explain that if the employer normally schedules an employee to work three ten-hour shifts, the two-week unpaid period for EPFMLA will be the six days the employee normally works during a two-week period, after which the employee will transition to paid EPFMLA. If the employee’s schedule varies, employers should base the two-week period on a six-month lookback period, or the entire period of employment if the employee has worked fewer than six months.
The DOL regulations clarify that the EPFMLA leave and regular FMLA leave cannot typically extend the total of 12 weeks of FMLA leave available in the applicable 12 month period. If an employee has taken one or more weeks of FMLA leave, the employee may use up the remaining 12 weeks of FMLA leave with EFMLA leave, but typically does not receive more than the maximum 12 weeks of leave. However the rule also states that the two-week period of unpaid leave runs from the date an employee uses leave under EPFMLA, not the date the employee used regular FMLA. In other words, an employee who has already exhausted FMLA for reasons other than that covered by5. EPFMLA, may still experience a two-week period of unpaid EPFMLA, and as a result, expand the protected time off from 12 to 14 weeks.
5. When can employees use EPSL and EPFMLA?
The DOL regulations and FAQ provide several important clarifications regarding the instances when an employee can take up to 80 hours (two weeks) of paid sick leave for one of the six qualifying reasons:
- The employee is subject to an isolation or quarantine order. This trigger for paid sick leave will apply where the employer otherwise has work for the employee (remains open for business or is allowing telework notwithstanding an isolation or quarantine order, including a shelter in place or stay at home order), and extenuating circumstances (such as COVID-19 symptoms) prevent the employee from performing the work despite the isolation or quarantine order. If an employer is shut down or the employee is laid off as a result of a shelter in place or stay at home order, the employer no longer has work for the employee and the EPSLA does not apply.
- The employee is advised by a health care provider to self-quarantine due to COVID-19 concerns. The health care provider directs self-quarantine based on their assessment or belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19, and the employee is unable to work at regular workplace or telework as a result of the advice to self-quarantine.
- The employee is experiencing symptoms and seeking a medical diagnosis for COVID-19. The regulations make clear that the employee must not only be experiencing the COVID-19 symptoms identified by the CDC (fever, dry cough, shortness of breath, etc.), but is also unable to work because they are affirmatively taking steps to obtain a medical diagnosis.
- The employee is caring for an individual who is subject to a quarantine/ isolation order, or who has been advised to self-quarantine by a health care provider. The individual cared for means an immediate family member, someone who regularly resides in the employee’s home, or similar person whom the employee has a relationship where it would be expected that the employee would provide care for that person. The individual is unable to care for themselves, and providing care prevents the employee from working or teleworking. For example, but for the employee’s need to care for a parent who has been advised by a health care provider to self-quarantine, the employee would be working, either at the employer’s worksite or teleworking.
- The employee is caring for their child due to school closure or child care unavailability due to COVID 19 reasons. This eligibility trigger applies where the employee is actually caring for their son or daughter, other suitable caregivers (co-parent, guardian, usual childcare provider) are unavailable, and the employee is unable to work or telework as a result.
- Employee experiencing other substantially similar conditions defined by several federal government entities. The DOL regulations and FAQs indicate that this EPSLA provision is saved and not yet defined.
The EPFMLA requires employers to provide expanded paid family and medical leave to eligible employees who are unable to work because the employee is caring for his or her son or daughter whose school or place of care is closed or whose childcare provider is unavailable due to a public health emergency, defined as an emergency with respect to COVID-19, declared by a federal, state, or local authority.
- Notice and documentation for EPSLA and EPFMLA.
For EPSLA reasons other than school closure/childcare provider unavailability, the employee can be required to provide notice after the first work day or part workday that an employee takes leave, and oral notice is sufficient. For school closure/childcare provider unavailability, where such leave is foreseeable, notice as soon as practical can be expected. Once notice of the reason for leave is provided, the employee can be required to follow the employer’s regular procedures for call in or staying in touch during the leave. If an employee fails in some manner to follow notice expectations, or fails to provide supporting information or documentation, the employer must give the employee notice of the failure and an opportunity to cure the deficiency before denying leave.
In addition to submitting name, dates of requested leave, the qualifying reason for leave, and an oral or written statement that the employee is unable to work because of the qualifying reason, the employee must also provide the employer the following information or documentation to support the various reasons for EPSLA leave:
- For an employee subject to an isolation or quarantine order related to COVID-19: the name of the governmental entity that issued the order.
- Regarding the situation where a health care provider advises an employee to self-quarantine due to concerns related to COVID-19: the name of the health care provider who advised the employee to self-quarantine.
- Where an employee requests leave to care for an individual who is subject to a quarantine or isolation order or an individual who has been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the order to which the individual being cared for is subject, or the name of the health care provider who advised the individual being cared for to self-quarantine.
- In the case of an employee caring for a child whose school is closed or whose childcare is unavailable due to COVID-19 concerns under both EPSLA and EPFMLA: the name of the child, name of the school, and that the place of care or childcare provider that has closed or become unavailable. In addition, on March 31, 2020, the IRS issued guidance regarding what documentation will be necessary for an employer to apply for a tax credit under the FFCRA. In the guidance, the IRS stated that an employee, when requesting EPSL or EPFMLA to care for a child whose school or place of care is closed, must provide a statement that “no other person will be providing care for the child during the period for which the employee is receiving [paid leave under the FFCRA].” The DOL’s temporary rule confirmed that leave to care for a child as described above is only available “if no suitable person is available to care for [the employee’s child] during the period of such leave.”
The FFCRA’s statutory definition of child care provider is “a provider who receives compensation for providing child care services on a regular basis.” The DOL’s temporary rule deviates from this statutory language and expands the term to include family members, friends and neighbors who regularly care for the child but who are not compensated or licensed.
6. Leave Attributes?
- Intermittent leave is limited.
Intermittent leave for those working on site (or teleworking) is available only if the employer and the employee agree, and only when the employee is needed to care for a child whose school or place of care is closed or unavailable for COVID-19. Employees out for other EPSLA reasons are not eligible for intermittent leave, and must continue to take EPSL each day until the employee exhausts paid leave or no longer has a EPSL reason for leave.
If the employee takes intermittent leave, only the amount of leave actually taken may be counted toward the employee’s FFCRA entitlement. For example, if a normally scheduled 40 hour employee only takes three hours of leave each workday for weekly total of 15 hours, only 15 hours of EPSL may be counted, or 37.5% of a workweek of EPFMLA.
- Substitution of accrued paid leave and EPSLA and EPFMLA.
EPSLA: Employees have the sole discretion to use EPSL or any employer provided accrued leave (i.e., PTO, vacation) for the two weeks (80 hours) for any EPSL reasons. The employer cannot dictate that employees substitute employer-paid leave.
EPFMLA: The DOL’s temporary rule confirms that the first two weeks of an employee’s leave under the expanded FMLA is unpaid, but that an employee can use any emergency paid sick leave they have available during this time. If an employee has already exhausted their emergency paid sick leave before the need for expanded FMLA leave arises, the employee may elect, or the employer may require, the employee to use “accrued leave under the employer’s policies that would be available to the employee to care for a child.”
While an employee is receiving 2/3 pay under the emergency sick leave or expanded FMLA provisions of the FFCRA, an employer and employee can agree to supplement the employee’s pay with any accrued employer-provided paid leave so that the employee receives 100% of his or her regular rate of pay (2/3 in FFCRA benefits and 1/3 covered by employer-provided paid leave).
7. What notice do employers need to provide?
Beginning April 1, covered employers are required to post a notice of the FFCRA requirements in a conspicuous place on its work premises. If employees are not coming into the workplace, the employer can satisfy this requirement by emailing or direct mailing this notice to employees or posting the notice on an internal or external website used for employee information. The DOL has published a notice that meets the requirements under that Act and it is available free of charge and can be downloaded here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
8. What are the rights of employees returning from leave?
Employees who return to the workplace from sick leave or enhanced FMLA generally have the right to be restored to the same or equivalent position that they held when they went out on leave.
Employees are not protected from employment actions, such as layoffs, while on leave if the employer can show that the employees would have been laid off even if they had not taken leave. The employer must be able to show that an employee would not have otherwise been employed at the time the employee requests reinstatement in order to deny the employee restoration to employment.
The EPFMLA regulations confirm that FMLA’s restoration process does not apply to an employer who has fewer than 25 employees when: (1) The employee took leave to care for a son or daughter whose school or place of care was closed or whose child care provider was not available; (2) The employee’s position no longer exists due to economic or operating conditions that affect employment and are caused by COVID-19 related reasons while the employee was on leave; (3) The employer made reasonable efforts to restore the employee to the same or equivalent position; and (4) If the reasonable efforts to restore the employee are not successful, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available. The employer must make this effort for one year from the date the employee’s COVID related leave ends or one year from the date twelve weeks after the employee’s leave began, whichever is earlier.
FMLA “key employees” may be denied reinstatement if that denial is necessary to prevent substantial or grievous economic injury to the employer’s operations.
9. When will DOL enforcement begin?
The DOL will not bring enforcement actions against any public or private employer for violations of the Act that occur between March 18, 2020, the date of the enactment of the law, and April 17, 2020, so long as the employer has made reasonable, good faith efforts to comply with the Act.
The following facts are required to meet the “reasonable” and “good faith” standards: the employer remedies any violations, including making all affected employees whole as soon as practicable; the violations were not willful (i.e. that the employer did not know or show reckless disregard for the matter of whether its conduct was prohibited); and the employer provides a written commitment to DOL to comply with the Act in the future.
After April 17, the DOL will fully enforce violations of the Act.
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