DOL Issues FFCRA Regulations
Last week, the U.S. Department of Labor issued temporary regulations addressing paid leave under the Families First Coronavirus Response Act (FFCRA). The FFCRA provides up to 80 hours of paid sick leave, capped at $511 per day and $5110 in the aggregate for care related to the employee, and $200 per day and $2,000 in the aggregate for care related to others, for certain COVID-related reasons. It also expands the FMLA to require FFCRA-covered employers to give paid leave to employees who need to care for a child whose school is closed or whose childcare provider is unavailable due to COVID-19. Along with the expanded FAQs on the DOL’s website, these regulations clarify certain areas of the law, discussed further below.
500-Employee Threshold
As addressed in our prior client alert, employers with fewer than 500 employees must permit their employees to utilize emergency sick leave and expanded FMLA leave when the employee is unable to work or telework for certain reasons (discussed further below). The determination of the 500-employee threshold is made as of the day the employee would take leave. Full and part-time employees within the United States (or any U.S. territory) are counted, regardless of how long they are employed. Employees on leave of any kind are also included, as well as employees of temporary agencies who are jointly employed under the FLSA, and day laborers supplied by a temp agency. Employers should not, however, count workers who were laid off or furloughed and not reemployed.
Full-Time vs. Part-Time
In determining how many hours of paid leave the employee is entitled to, the regulations make clear that a “full-time employee” works at least 80 hours over two workweeks. Part-time employees who work a normal schedule are entitled to paid sick leave equal to the number of hours the employee is normally scheduled to work over a two-workweek period. Employees with varied schedules are entitled to paid sick leave equal to fourteen times the number of hours that the employee was scheduled per calendar day, averaged over a six-month period. If an employer is relying on the “reasonable expectation” of hours for part-time employees with varied schedules who have worked for less than six months, that expectation is best evidenced by an agreement between the employer and employee at the time of hiring.
Expanded Guidance on Reasons for Leave
The regulations make clear that the employee’s inability to work must be related to one of the specific reasons below; an employee who is furloughed or for whom an employer has no work is not eligible for federal sick leave or expanded FMLA leave as their lack of work is not due to one of the covered reasons below.
One reason for sick leave is when the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19. Unlike New York State’s emergency COVID sick leave legislation, which requires an actual order from the government entity or a doctor’s note meeting certain requirements if an order is not immediately available, the federal regulations take an expansive reading of what constitutes a quarantine or isolation order. An employee may take federal sick leave if the employee is subject to an order advising some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their mobility, if the employee is prevented from working or teleworking. The guidance has a fairly generous reading of this requirement. As an example, it discusses an employee who is subject to a stay-at-home order, teleworks, but then loses power and is therefore unable to telework while the power is out. The guidance states that the employee would be entitled to federal paid sick leave for the time the employee is unable to work due to that power outage. Although expanded paid FMLA is not available for an employee’s own illness, an ill employee who needs additional time off may qualify for unpaid FMLA leave or additional leave under New York state’s emergency sick leave legislation.
Employees may also take emergency sick leave when they have been advised by a health care provider to self-quarantine due to concerns related to COVID-19. The health care provider may advise an employee to self-quarantine on a belief that the employee has or may have COVID-19 or because the employee is particularly vulnerable to COVID-19. Additionally, employees who have COVID-19 symptoms and seek medical attention but do not meet the criteria for testing to confirm that diagnosis may still be eligible for leave if they are advised by their healthcare professional to quarantine. Employees may not, however, take leave if they simply decide to self-quarantine for possible symptoms without seeking medical advice or diagnosis.
When an employee has a fever, dry cough, shortness of breath, or any of the other symptoms delineated by the CDC as reflecting COVID-19, the employee may take paid sick leave for time spent making, waiting for, or attending an appointment for a test for COVID-19. An employee who is unable to telework may continue to take paid sick leave under this reason while awaiting a test result, regardless of the severity of the COVID-19 symptoms that the employee might be experiencing.
Employees may also take paid sick leave to care for an individual who either is subject to a quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. The regulations clarify that the person the employee is caring for must be an immediate family member, household member, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined; it does not include people with whom the employee has no personal relationship. Although employees may not take expanded paid FMLA for this reason, employees who need additional time off may be eligible for unpaid FMLA if the illness is considered a “serious condition” of a covered family member, or paid family leave, if the employee works in New York State.
Employees may take sick leave if they are experiencing any other “substantially similar” condition specified by the Secretary of Health and Human Services. However, to date, the Secretary of HHS has not issued any guidance on substantially similar conditions.
Finally, when the employee’s child’s school or place of care is closed or the child’s care provider is unavailable because of COVID-19 related reasons, the employee may take paid sick leave. Covered children include both children under 18 and children 18 years of age or older who are incapable of self-care because of a mental or physical disability. If the employee was on the employer’s payroll for 30 calendar days before the need for leave, the employee is also eligible for expanded FMLA leave, with the last 10 of the 12 weeks of leave paid at two-thirds of the employee’s regular rate of pay up to a cap of $200 per day, or $10,000 in the aggregate. An employee who is laid off or terminated by an employer on or after March 1, 2020 but who is rehired on or before December 31, 2020, is also considered to have been employed for at least thirty calendar days, provided the employee had been on the employer’s payroll for thirty or more of the sixty calendar days prior to the date the employee was laid off or otherwise terminated. The FAQs make clear that the child’s school is “closed” even if some or all of the instruction is provided online or through another “distance learning” format. However, the employee is not eligible to take leave to care for their child if another suitable individual—such as a co-parent, co-guardian, or the usual childcare provider—is available to provide the necessary care.
How Leave may be Used
Intermittent Leave
As a starting point, paid sick leave and expanded FMLA can be used intermittently only if both the employee and employer agree. This agreement is not required to be memorialized in writing but should be a “a clear and mutual understanding between the parties” that also details the increment of time of such use. In addition to mutual agreement, whether an employee may take paid sick or expanded FMLA leave intermittently depends on whether the employee is teleworking or working on site, as well as the reason for use. Employees who are reporting to the employer’s worksite may only take intermittent leave if they are caring for a child whose childcare provider or school was closed. With all other covered reasons for leave, an employee may be sick or at high risk of exposure and infecting others. Therefore, when an employee who is reporting to a work site uses emergency sick leave for any other covered reason, they must use such sick leave in full or until they no longer have a qualifying reason for leave; they may not use it intermittently. Employees who are teleworking do not have the same risk of exposing other members of the workforce, and can therefore use intermittent leave for any reason, provided that both the employer and employee agree.
Impact of Leave
Time taken by an employee under the “standard” FMLA counts against the amount of eligible “expanded” FMLA an employee has available. Similarly, time taken by an employee under expanded FMLA to care for a child whose school or childcare provider has closed will count against any time the employee may want to use for “standard” FMLA reasons during the employer’s 12-month period. An employee is entitled to only 12 weeks of expanded FMLA leave, even if the expanded FMLA period (April 1 – December 31, 2020) spans two of the employer’s 12-month periods under the standard FMLA.
An employee’s use of emergency sick leave for non-childcare related reason does not count toward the employee’s emergency FMLA entitlement, but in those instances where an employee exhausts all their emergency sick leave for non-childcare reasons (e.g., the employee’s own COVID-19 quarantine) the first two weeks of the expanded FMLA would be unpaid. During the 2/3 paid portion of the expanded FMLA, the employer and employee may agree, but the employer may not require, that the employee use a portion of accrued, unused vacation or personal leave to receive full pay. However, in the event the employer provides the employee with the additional 1/3 of the vacation time, the employer may only receive the tax reimbursement up to the cap of $200 per day, $10,000 in the aggregate.
Paid time off granted to employees prior to the law’s effective date, even if granted for similar reasons, does not count against the employee’s entitlement to emergency paid sick leave. However, after April 1, 2020, an employee is only entitled to a maximum of 80 hours of emergency paid sick leave in total—even if the employee changes employers.
Notice and Documentation
Notice of the need for leave may not be required in advance and may only be required after the first workday (or portion thereof) for which an employee takes paid sick leave or expanded FMLA. After the first workday, it will be reasonable for an employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for the employer to require the employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.
Employers may require that an employee who wishes to take leave provide the employee’s name, the date(s) for which leave is requested, the COVID-19 qualifying reason for leave, and a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. If the reason for the leave is the employee or loved one’s order of quarantine, the employee must provide the name of the government entity that issued the order or the name of the health care provider who advised the employee to self-quarantine. For leave to care for a child, the employee must provide the name of the child, the name of school/place of care that closed or is unavailable, and a statement that no other suitable person is available to care for the child during the period of leave. The regulations make clear that employers can also request the employee to provide any additional materials needed for the employer to receive the statutory tax credits. Although much of this information overlaps with information already contained in the DOL regulations, the IRS has required some additional information; for example, for leave to care for a child older than 14 during daylight hours, the employee must include a statement that “special circumstances” exist which require the employee to provide care. Importantly, the regulations state that the employer is not required to provide leave if materials sufficient to support the tax credits haven’t been provided. The IRS has also issued an FAQ for employers on the tax credits, which can be found here.
Employers must retain documentation related to the paid sick and expanded FMLA leave for four years, regardless of whether leave was granted or denied. Importantly, the regulations mandate that oral statements should also be documented by the employer and similarly maintained.
Exceptions to Coverage
Health Care Providers and Emergency Responders
Health care providers and emergency responders may be excluded by their employers from the emergency paid sick leave and expanded FMLA. For these purposes, health care providers are not just limited to diagnosing medical professionals, but rather include “any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency,” such as employees of doctors’ offices, hospitals, health care centers, clinics, medical schools, retirement facilities, home health care providers, pharmacies, and others. This also includes workers who are needed to keep hospitals and similar health care facilities well supplied and operational, as well as employees who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat the COVID-19 public health emergency.
Similarly “emergency responder” is intended to cover anyone who (1) interacts with and aids individuals with physical or mental health issues, including those who are or may be suffering from COVID-19; (2) ensures the welfare and safety of our communities and of our nation; (3) has specialized training relevant to emergency response; and (4) provides essential services relevant to the American people’s health and wellbeing. The regulations state that anyone necessary for providing transport, care, healthcare, comfort and nutrition of such patients or others needed for the response to COVID-19 constitutes an emergency responder. Emergency responders include, but are not limited to the military, national guard, law enforcement, correctional institutional personnel, fire fighters, EMS, physicians, nurses, public health, EMT, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, persons with skills or training in operating specialized equipment or other skills to provide aid in a declared emergency, as well as individuals who work for facilities employing these individuals whose work is necessary to maintain the operation of the facility.
The regulations also allow the highest official of a state to determine who is a health care provider or emergency responder necessary for their response to COVID.
Small Business Exception
A small business with fewer than 50 employees can deny an employee expanded FMLA or expanded sick leave for the purposes of caring the employee’s son or daughter whose school or place of care is closed, or child care provider is unavailable, for COVID-19 related reasons, provided certain requirements are met. The regulations state that a small employer is exempt from the requirement to provide this leave when:
the leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a “minimal capacity”;
the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capabilities of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the work the employee(s), and these services are needed for the small employer to operate at a minimal capacity.
Notably, this exception only applies to childcare-related leaves and does not apply to any other covered reason for emergency sick leave. If the small employer denies the sick leave or expanded FMLA, the employer must document the facts and circumstances that meet the above criteria. This information does not need to be sent to the Department of Labor, but rather should be retained in the employer’s files. Given the lack of clarity around some of the terms above, such as “substantial risk” and “minimal capacity”, small employers who wish to rely on this exemption should consult with counsel before doing so.
Employers with questions about this new federal leave should contact Kristina Grimshaw at kgrimshaw@fglawllc.com, or any other attorney at the firm.
DISCLAIMER: This alert is provided to clients and friends of the firm for informational purposes only and the distribution of this alert is not intended to, and does not, establish an attorney-client relationship. This alert also does not provide or offer legal advice or opinions on any specific factual situations or matters. This communication may be considered Attorney Advertising. Prior results do not guarantee a similar outcome.