The Department of Labor has issued regulations, clarifying and expanding lingering questions of FFCRA
On April 1, 2020, the U.S. Department of Labor (“DOL”) issued regulations to implement the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”) provisions of the Families First Coronavirus Response Act (“FFCRA”). The regulations can be found here. The regulations clarify, expand, and build upon the previous question and answer (“Q&As”) guidance from the DOL’s Wage and Hour Division. These regulations help clarify some of the questions left unanswered by the initial text of the FFCRA. Below are some of the key takeaways:
Emergency Paid Sick Leave Act (“EPSLA”):
Notably, the DOL clarified that eligibility for paid sick leave for when an employee is unable to work due to a quarantine or isolation order, “include[s] a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” While at first this appears to include almost everyone, the DOL further clarified that the employee is only eligible for paid leave in this situation when “but for” the quarantine or isolation order, the employee would be able to work. This means the employee is not eligible for paid leave if the business has closed down due to a government order. Further, if the employee is able to telework, requiring the employer to have work for the employee to complete while on quarantine or isolation, the employee is not eligible for this paid leave.
Regarding the amount of pay, the DOL stated that a full-time employee is eligible for 80 hours, not necessarily 10 days. A part-time employee is eligible for the number of hours that the employee works, on average, over a 2-week period, or if the employee’s schedule varies from week to week, “the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes the paid sick time.” If the employee has not worked 6 months, then “the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”
Emergency Family and Medical Leave Expansion Act (“EFMLEA”):
The EFMLEA provides a sixth qualifying reason for taking FMLA: “if the employee is unable to work due to a need for leave to care for his or her son or daughter if the child’s school or place of care is closed, or the child care provider of such son or daughter is unavailable, for reasons related to COVID-19.” Employees are paid at 2/3 of their regular rate, capped at $200/day.
If an employee’s situation does not meet this eligibility criteria, the employee may still be eligible for traditional FMLA leave to care for his or her child for a COVID-19 related reason. In this situation, traditional FMLA certification requirements apply.
An employee must provide his or her employer documentation in support of paid sick leave or expanded family and medical leave which must include at minimum a signed statement containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. Further information may be required depending on the specific reason for taking leave. Employers should keep all documentation related to requests, approvals, and denials.
Importantly, paid leave provided under the EPSLA is in addition to any paid leave to which an employee is otherwise entitled. Further, this is in addition to any leave the employer already provided to employees prior to April 1, 2020. However, an employer can terminate a voluntary additional offering of paid leave, as long as the employer has not already made a change to its leave policy.
An employer can require an employee to use accrued paid leave concurrently with the EFMLEA, but not as a substitution. If the employee uses accrued paid leave concurrently with the EFMLEA, the employer must pay the employee the full amount they are entitled to under the leave policy, but can only receive a tax credit up to $200 a day.
Generally, intermittent leave is not permitted unless the employer agrees, including agreeing to the increments of time the leave can be taken in. In addition, if agreed upon, intermittent leave is generally only appropriate when an employee is working remotely. If an employee is still reporting to the worksite, then intermittent leave can only be taken for the purpose of caring for a child whose school or daycare is closed because of COVID-19 and subject to the agreement of the employer.
Return to Work:
The FFCRA requires an employer to restore an employee to the same or equivalent position after taking paid leave in the same manner as required by the FMLA. There are a couple exceptions to this requirement. The first is for “key employees” as defined by the FMLA. This permits employers to deny job restoration to “key employees” if “such denial is necessary to prevent substantial and grievous economic injury to the operations.” The other exception applies to employers with less than 25 eligible employees if all four of the following conditions are met: “(1) the employee took leave to care for his or her son or daughter whose school or place of care was closed or whose child care provider was unavailable, (2) the employee’s position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by a public health emergency (i.e., due to COVID–19 related reasons) during the period of the employee’s leave, (3) the employer made reasonable efforts to restore the employee to the same or an equivalent position, and (4) if the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts for a period of time to contact the employee if an equivalent position becomes available.”
New legislation and regulations related to COVID-19 are evolving quickly. Please contact the Labor and Employment Team at DRM for further guidance on COVID-19 employment related issues.