Published in NEHRA News (4/9/2020)
On April 1, 2020, the U.S. Department of Labor’s Wage and Hour Division posted temporary regulations for the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) to provide employers with guidance to administer these two new paid leave laws under the Families First Coronavirus Response Act (FFCRA). The rule became operational on April 1, 2020 and is set to expire on December 31, 2020. The final rule (29 CFR § 826) officially published in the Federal Register today, April 6, 2020.
FFCRA, as amended by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), authorizes the Secretary of Labor to issue regulations “as necessary, to carry out the purposes of this Act, including to ensure consistency” between the EPSLA and the EFMLEA. This blog attempts to highlight only some of these rules. Other posts on the requirements of FFCRA, including DOL guidance to date, can be found at the McLane Middleton’s Coronavirus Resource page.
Clarification of the qualifying reasons for leave under the EPSLA and EFMLA
An employee is entitled to paid leave when one of the qualifying reasons having to do with COVID-19 causes the employee to be unable to work even though the employer has work (or telework) for the employee to perform. Recognizing the governmental actions being taken to stop the spread of the coronavirus and the increase in people working from home, the term work not only includes the traditional workplace but it also includes telework. The regulations define “telework” to mean “work the Employer permits or allows an Employee to perform while the Employee is at home or at a location other than the Employee’s normal workplace.” (§ 826.10). Under that definition, an employee will be considered able to telework (and therefore able to work) and not entitled to paid leave if:
- the employer has work for the employee to perform;
- the employer permits the employee to telework; and
- there are no extenuating circumstances that prevent the employee from performing work (telework).
The DOL also reminds employers that employment laws apply equally to employees who telework for COVID-19 reasons. Therefore, nonexempt employees must be paid for all hours worked or “which the Employer knew or should have known were worked” by the employee, including any overtime. Employers must also continue to maintain accurate records of hours worked.
Six qualifying reasons under EPSLA
1. Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19. The rule clarifies that a “quarantine or isolation order” broadly includes a range of governmental orders for “quarantine, isolation, containment, shelter-in-place, or stay-at-home.” It also includes orders that may address a range of categories (for example, orders related to citizens of “certain age ranges or of certain medical conditions”). (§ 826.10(a)).
An employee must be unable to work (or telework) due to the quarantine or isolation order to qualify for leave. The regulations further explain that someone who is able to telework for their job (as defined above) while under a quarantine or isolation order may not take paid sick leave. “For example, if a law firm permits its lawyers to work from home, a lawyer would not be prevented from working by a stay-at-home order, and thus may not take paid sick leave as a result of being subject to that order. In this circumstance, the lawyer is able to telework even if she is required to use her own computer instead of her employer’s computer. But, she would not be able to telework in the event of a power outage or similar extenuating circumstances and would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.”
2. Advised by a health care provider to self-quarantine due to concerns related to COVID-19. The regulations explain that a health care provider (as defined under 29 CFR § 825.102 of the Family and Medical Leave Act) must advise the employee to self-quarantine because the employee:
- has COVID-19;
- may have COVID-19; or
- is particularly vulnerable to COVID-19.
Again, leave is allowed only if the self-quarantine is the cause for the employee being unable to work. For example, an employee who is self-quarantined and unable to telework may be eligible for leave if the employer has work for the employee to perform. An employee who is able to telework (as defined above) while self-quarantining may not take paid sick leave. The regulations point out that extenuating circumstances that could prevent the employee from teleworking such that the employee is unable to work may include experiencing serious symptoms from COVID-19.
3. Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider. The regulations confirm that an employee who has COVID-19 symptoms, including fever, dry cough, shortness of breath, or other symptoms identified by the CDC and is seeking a medical diagnosis may be entitled to leave. The key is that the employee must take affirmative steps to obtain a medical diagnosis. Accordingly, an employee may take leave for time spent waiting in line to be tested for COVID-19 or for making or attending an appointment for such a test.
The leave allowed for this qualifying reason is limited to the time the employee is unable to work (or telework). For example, if an employee is unable to telework due to the employee’s job duties, the employee may continue on leave while waiting for the test results. On the other hand, if an employee is able to telework while waiting for the results to come back from a COVID-19 test, the employee may not take paid sick leave. Again, the regulations point out that extenuating circumstances that may prevent an employee from being able to telework include the employee experiencing serious symptoms from COVID-19.
The regulations note that an employee who has COVID-19 symptoms and affirmatively seeks a medical diagnosis but is told the employee will not be tested and instead is medically advised to self-quarantine may be eligible for leave under the second qualifying reason.
4. Employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or advised by a health care provider to self-quarantine due to concerns related to COVID-19. The regulations clarify that the employee must have some personal relationship with the “individual” the employee needs to care for under this qualifying reason. The “individual” must be an immediate family member, a person who regularly resides with the employee, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person. (§ 826.20(5)) The same requirements for “quarantine or isolation order” and medical advice by a health care provider to self-quarantine noted above apply. To qualify, the employee must also have a genuine need to care for the individual and be unable to work (or telework) because of this care.
5. Employee is caring for employee’s son or daughter whose school or place of care has been closed for a period of time, whether by order of a state or local official or authority or at the decision of the individual school or place of care, or the child care provider of such son or daughter is unavailable for reasons related to COVID-19 (§ 826.20(a)(v)). The regulations are consistent with the DOL guidance defining “son or daughter.” While the language in FFCRA varies, the DOL is defining the term the consistently under both the EPSLA and the EFMLEA. “Son or daughter” includes children under 18 years of age or 18 years of age or older and incapable of self-care because of a mental or physical disability as defined under the FMLA.
Accordingly, under both the EPSLA and the EFMLEA an employee may take leave if the employee is unable to work due to a need to care for the employee’s son or daughter whose school or place of care has been closed, or whose child care provider is unavailable, for reasons related to COVID-19. (§ 826.20(a) and (§ 826.20(b)). “Place of care” is defined broadly to include day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs. “Child care provider” includes State licensed, regulated or registered providers of child care services on a regular basis for compensation as well as family or friends who regularly care for the employee’s child, even if not for compensation or licensed. (§ 826.10(a)).
Again, the employee must be unable to work (or telework) due to the need to care for, and the actual care of, his or her son or daughter. There must also be no other suitable person (such as a co-parent, co-guardian, or usual child care provider) who is available to care for the employee’s son or daughter during the period of leave.
6. Employee has substantially similar condition as specified by the Secretary of health and Human Services. The Secretary has until December 31, 2020 to specify conditions subject to this sixth qualifying reason for paid leave.
Intermittent leave allowed with limitation
The regulations confirm that intermittent leave under the EPSLA and the EFMLEA may be allowed only if the employer agrees. While the agreement need not be in writing, the agreement must be a mutual and clear understanding between the employer and employee as to the intermittent leave and the increments of time in which leave may be taken. Employers should have any intermittent leave arrangement memorialized in a writing and retain this documentation for 4 years (see documentation requirements below).
The limitation comes into play based on whether the employee teleworks. Employees who telework may take intermittent leave for any of the qualifying reasons if the arrangement is agreed to by the employer. However, in highlighting the objective to contain the spread of COVID-19, the regulations confirm that employees who report to the worksite may only take intermittent leave if the sick leave or expanded family and medical leave is solely to care for a son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19. For all other reasons, intermittent leave is not permitted. (§ 826.50(b)(2)). This is due to the concern with containment of the coronavirus.
Documentation required for leave must be retained for 4 years
An employee must provide the employer with the following information prior to taking leave under the EPSLA or the EFMLEA.
- employee’s name;
- date(s) for which leave is requested;
- qualifying reason for the leave; and
- oral or written statement that the employee is unable to work because of the qualified reason for the leave.
An employee must also provide the employer with information based on the qualified reason for the leave. When requesting EPSLA leave for reasons related to a quarantine or isolation order for either employee or individual the employee needs to care for, the employee must provide the name of the government entity that issued the quarantine or isolation order.
When requesting EPSLA leave for reasons related to a health care provider who advised employee or individual employees needs to care for to self-quarantine due to concerns related to COVID-19, the employee must provide the name of the health care provider.
Under both EPSLA leave and EFMLEA leave to care for a son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19, the employee must provide the name of the employee’s son or daughter, the name of the school, place of care, or child care provider that has closed or become unavailable, and a representation that no other suitable person will be caring for the employee’s son or daughter for the period of leave.
The regulations also note the FFCRA allows such additional information to support a request for tax credits pursuant to the FFCRA. In order the claim tax credits from the IRS, employers will need to maintain documentation related to the leave paid to employees. (§ 826.140). The IRS has issued guidance on applicable forms, instructions, and information at https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.
The employer should also ask an employee at the time of the request for leave under EPSLA whether the employee has taken any such leave in 2020. The final section of the regulation (826.160(f)) makes clear that an employee is entitled to a total of 80 hours of leave under the EPSLA. Therefore, an employee’s paid leave “expires” upon reaching 80 hours total. Under that scenario, the employee is not entitled to leave under the EPSLA with a new employer. If an employee has taken fewer than 80 hours of leave, the employee would be entitled to additional leave if the employee satisfies one of the six qualified reasons, even if provided by a new employer.
An employer must retain all records and documentation supporting the leave for four years. This obligation applies to documentation that both supports or denies a requested leave. (§ 826.140). The regulations specifically note that if the employee only provided an oral statement in support of a request for leave, the employer must document that oral request and retain those records for 4 years.
Discussion about the exclusion allowed under FFCRA for employers for health care providers and emergency responders is addressed by my colleagues here.
DOL Webinar on FFCRA
The US DOL has recently posted a webinar to further educate people about the requirements under FFCRA. The webinar and slides are available at https://www.dol.gov/agencies/whd/ffcra. Other helpful guidance, fact sheets, and model notices are also available for download.