Last week, the U.S. Department of Labor (DOL) issued temporary regulations regarding the Families First Coronavirus Response Act (FFCRA) that provides important information about the implementation of the Expanded Family and Medical Leave Expansion Action (EPFMEA) and the Emergency Paid Sick Leave Act (EPSLA). The important clarifying aspects of the regulations are:
Employee Eligibility:
The regulations make clear that, for EPSLA purposes, all employees of a covered employer are eligible to take EPSLA leave (with a few exceptions not relevant to school districts). With respect to EPFMEA, employees must be employed for at least 30 calendar days to be eligible for leave. An employee is employed for at least 30 calendar days where:
The employee was on the employer’s payroll for the 30 calendar days immediately prior to the date on which the employee’s leave would begin; or
The employee was laid off or otherwise terminated by the employer on or after March 1, 2020, and rehired or reemployed by the employer on or before December 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or terminated.
Finally, similar to traditional FMLA, when an employee is employed by a temporary placement agency (for example, a contracted for substitute teacher) and subsequently hired by the employer, the employer must count the days worked as a temporary employee of the agency toward the 30-day eligibility period.
Job Protection/Restoration:
The regulations provide that upon return to work from EPSLA or EPFMEA leave, the employee has the right to be restored to the same or equivalent position, subject to certain limitations: (a) an employee is not protected from employment actions, such as layoffs, which would have affected the employee had they not taken leave; to deny restoration of employment, the employer must be able to show that the employee would not otherwise have been employed at the time reinstatement is requested; and (b) for EPFMEA leave only, an employer may deny job restoration to certain “key” employees (as defined under preexisting FMLA regulations), if denial of restoration is necessary to prevent substantial and grievous economic injury to the employer’s operations. The steps to use option (b) are very specific and limited.
EPSLA Designation of Fulltime & Part-Time Employees:
Employees are deemed to be "fulltime” and thus receive 80 paid sick leave hours in two situations: (1) if their employer normally schedules them to work at least 40 hours each workweek; or (2) for employees without a normal weekly schedule, if the average number of workweek hours their employer schedules them to work (including leave hours they take) is at least 40 hours per workweek over the entire period of employment or the six-month period that ends when the employee takes paid sick leave, whichever is shorter.
All other employees are "part-time”. The regulations outline how to determine how many EPSLA hours “part-time” employees receive:
Part-time employees with a normal weekly schedule receive an amount of EPSLA that equals the total amount of hours worked in a two-week period.
For Part-time employees who lack a normal weekly schedule, employers should use the total hours the employee worked during the six-month period (or the entire period of employment, if shorter) before taking leave, divide that by the number of calendar days in the period, then multiply the result by 14.
Example: if an employee works 520 hours in a six-month period, that roughly equates to 2.857 hours per calendar day, so, multiplied by 14, the employee receives up to 40 hours of EPSLA.
Importantly, if at the time of hiring, the employer and employee had reached an agreement concerning the average number of work hours each calendar day, that daily number multiplied by 14 determines the amount of EPSLA the employee is eligible to receive.
The EPFMEA Unpaid Period is the Time an Employee Normally Works in Two Workweeks:
Although EPFMEA has a “10-day” unpaid period, the DOL equates that period to two workweeks. Example: if an employee is normally scheduled to work three 10-hour shifts per workweek, "10 days” will be the six days the employee normally works during a two-workweek period, after which the employee transitions to "paid" EPFMEA .
EPFMEA Leave and Traditional FMLA Leave Cannot Exceed 12 Weeks in a 12-Month Period but Employee Still Entitled to EPSLA Leave:
EPFMEA cannot exceed a total of 12 weeks of leave during the applicable 12-month period. Any amount of traditional FMLA leave an employee used earlier in that same 12-month period reduces the amount of EPFMEA leave the employee may take.
Example: if during an applicable FMLA 12-month period, an employee takes 4 weeks of traditional FMLA leave, the employee has 8 weeks of EPFMEA leave left to use in that same period. But, if an employee has exhausted all 12 workweeks of traditional FMLA leave, EPFMEA leave, or a combination of traditional FMLA leave and EPFMEA leave, the employee still can make use of any remaining EPSLA leave.
Substitution of Accrued Employer-Provided Paid Leave and “Top Offs”:
The DOL regulations clarify how accrued paid leave interacts with EPSLA and EPFMEA:
For the two weeks (up to 80 hours) of EPSLA, the employee has the sole discretion to use EPSLA or any accrued paid leave the employer provides. The employer cannot require that employees substitute employer-paid leave during this time.
For the initial "10 days/two workweeks" of unpaid EPFMEA, the employee can elect to use employer-provided paid leave, but the employer can require that this count toward overall EPFMEA leave entitlement. This means that an employee may be eligible to use EPSLA during this time, employer-provided leave, or both, to top off to 100% of their pay.
For the remaining 10 weeks of paid EPFMEA, the employer cannot require that an employee “top off” EPFMEA with employer-provided leave, vacation, or PTO, but the parties can mutually agree to top off. If the parties do agree, this does not extend the overall amount of EPFMEA leave.
Telework:
Telework can occur during normal hours or at other times if the parties agree. The DOL regulations address administrative challenges and how telework interacts with pre-FFCRA standards concerning when the workday begins and what constitutes "hours worked" for FLSA minimum wage and overtime purposes. The DOL says that for FFCRA telework, the "continuous workday" rule will not apply. Generally, under the “continuous workday” rule, employees are "on the clock" once they first perform tasks that are “integral and indispensable to" their “principal activity.” However, for FFCRA purposes, because of the need for flexibility regarding work arrangements, the DOL clarifies that employers are not "required to count as hours worked all time between the first and last principal activity." Instead, employers must pay employees for "all hours actually worked." Example: if during a workday while teleworking from 7 a.m. to 9 p.m., an employee performs work from 7-10 a.m., 1-4 p.m., and 7-9 p.m., the employee works 8 hours, not 14 hours. It is critical for employees to accurately record their hours, which may be new to many employees. The DOL also stresses that employers must pay employees for hours of work they know employees perform, i.e., if employees do not record all hours, and employers do not have actual or constructive knowledge that employees perform unrecorded work, payment occurs for known, recorded hours only.
Qualifying Events:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19: The regulations broadly interpret this to cover "quarantine, isolation, containment, shelter-in-place, or stay-at-home orders" a federal, state, or local government issues, including advisories that "categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine."
Yet importantly, this qualifying reason does not apply when an employee is unable to work because his or her employer is subject to an order – even a quarantine order – shutting the business down or substantially curtailing its operations. The employer has to have work available for the employee to do in order for the employee to be entitled to leave. Example: if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it does not have work for employees to perform, so employees cannot take leave; this applies even if a stay-at-home order substantially causes the closure. According to § 826.20(a)(2), this reason for EPSLA applies only if, but for being subject to the order, the employee would be able to perform work that is otherwise allowed or permitted by his or her employer, either at the employee’s normal workplace or by telework. An employee that is subject to a quarantine or isolation order may not take EPSLA where the employer does not have work for the employee as a result of the order or other circumstances.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19: The regulations establish a two-part test: (1) a health care provider (same definition as under the traditional FMLA) must advise self-quarantine due to a belief the employee has, may have, or is particularly vulnerable to, COVID-19; and (2) following this advice and self-quarantining, the employee is unable to work at the normal workplace or telework.
(3) The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider: This qualifying event applies when employees are experiencing fever, dry cough, shortness of breath, or any other COVID-19 symptoms the CDC identifies and are unable to work because they take affirmative steps to actually obtain a medical diagnosis, e.g., making, waiting for, or attending an appointment for a COVID-19 test. The DOL regulations clarified that employees cannot use paid sick leave to self-quarantine without seeking a medical diagnosis. Additionally, the regulations explain that employees cannot use paid sick leave if they can telework while awaiting test results.
(4) The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19: The regulations define an "individual" as "an [e]mployee’s immediate family member, a person who regularly resides in the [e]mployee’s home, or a similar person with whom the [e]mployee has a relationship that creates an expectation that the [e]mployee would care for the person." The regulations exclude persons with whom employees have no personal relationship.
(5) The employee is caring for his or her 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: Where the employee requests leave to care for a child whose school or place of care is closed, the DOL adopts recently issued IRS guidance by limiting EPSLA and EPFMEA only to situations where the employee must actually care for the child and no other suitable person (e.g., co-parents, co-guardians, or the usual childcare provider) is available to care for the child during the period. If another caretaker is available to care for the child, the employee cannot use leave.
(6) The employee has a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor: the agency has not specified any other substantially similar condition as of yet.
Intermittent Leave:
In an effort to limit the risk that an employee might spread COVID-19 to other employees, the DOL has limited the use of intermittent leave for those working onsite to two main conditions: 1) that the employee and employer agree to the use of intermittent leave; and 2) such use is limited to the employee’s need to care for a child whose school or place of care is closed, or where childcare is unavailable.
The reasoning for this is that, where an employee is absent due to COVID-19 symptoms or diagnosis or is taking care of an individual with symptoms or a diagnosis of COVID-19, it is not acceptable for the employee to take intermittent leave due to the “unacceptably high risk” that the employee might spread COVID-19 to other employees. In these situations, the DOL regulations made clear that the employee must continue to take continuous paid sick leave each day until the employee either exhausts paid leave or no longer has a reason for leave from work.
In the case of telework, intermittent leave is available for employees who are taking EPSLA or EPFMEA, but again only if the employer agrees.
Notice and Documentation Requirements from Employees Requesting to Use Leave:
Notice
The DOL regulations outline different employee notice requirements depending on the reason for leave:
For employees needing leave for school closures/childcare unavailability, and where such leave is foreseeable, employees must provide notice as soon as is practicable (consistent with traditional FMLA standards).
When an employee needs leave for any other reason under EPSLA, the standards loosen, and employers can only require employees provide notice after the first workday (or part of a workday) that an employee takes EPSLA. Employers must accept this notice from the employee’s spokesperson, such as a family member or other responsible party, if the employee is unable to provide such notice personally.
Oral notice of the initial need for leave under FFCRA is sufficient, as long as the employee provides enough information for the employer to determine it is an FFCRA-qualifying reason for leave. However, nothing in the regulations prevents an employer from directing employees to then follow the employer’s usual and customary procedures from that point forward. The DOL reminds employers that if an employee fails to providing notice or supporting information/documentation, the employer should give the employee notice of the failure and an opportunity to correct the deficiency prior to denying the leave.
Documentation
Prior to being able to take EPSLA or EPFMEA leaves, the employee must provide:
the employee's name,
the dates for which the employee is requesting leave,
the qualifying reason, and
an oral or written statement that the employee is unable to work.
The DOL also outlines what type of documentation or information employees must provide in support of various types of leave under EPSLA/EPFMEA:
Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the Order.
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.
Employee caring 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.
Employee caring for a child whose school is closed or childcare is unavailable due to COVID-19 precautions: name of the child, name of the school, place of care or child care provider (each defined in the regulations) that has closed or become unavailable, and a representation that “no other suitable person will be caring for the child during the period” the employee is taking EPSLA or EPFMEA for this reason.
It seems that the DOL is permitting employers to require information, but perhaps not much actual documentation, particularly compared to traditional FMLA documentation standards.
Employer Recordkeeping Requirements:
To comply with the FFCRA’s paid leave mandates, employers must retain documents and information regarding EPSLA and EPFMEA for four years, regardless of whether they grant or deny leave. Additionally, if the employee provides oral statements only, it is the employer’s responsibility to document those oral statements and associated information for its records for the four-year period.
EPFMEA Generally Incorporates Traditional FMLA Protections:
The FFCRA discusses only job restoration rights. In the regulations, the DOL states that all pre-FFCRA traditional FMLA protections apply to EPFMEA, e.g., FMLA interference.
Continuation of Health Care Coverage:
The regulations state that where an employee is taking EPSLA or EPFMEA leave, the employer must maintain the employee’s coverage under any group health plan on the same conditions as it would provide if the employee had been continuously employed during the entire leave period. If an employer provides a new health plan or changes its existing plan while the employee is on leave, the employee gets the new or changed plan/benefits to the same extent as if they were not on leave. Changes to things like premiums or deductibles that apply to all employees in the workforce would also apply to employees on FFCRA leave, as would notice of any opportunity to change plans or benefits.
Employees are responsible for paying their portion of group health premiums they were paying prior to taking leave. Where a payroll deduction is insufficient to cover the employee’s share of the premium, an employer should look to pre-existing FMLA regulations for alternative means to obtain payment.
While on leave, an employee may choose not to retain group health plan coverage, but, upon return, can have coverage reinstated on the same terms that existed prior to taking leave, without any additional qualifying period, physical examination, or exclusion of pre-existing conditions.
Employers that Offered Additional Leave Before April 1, 2020:
During the COVID-19 crisis, and prior to April 1, 2020, many employers provided employees with additional paid leave before federal law required it. The regulations make clear that, notwithstanding any leave employers previously provided, leave they must provide under the FFCRA is in addition to that leave. Additionally, the DOL makes clear that employers need not retroactively pay employees for absences that would have qualified for FFCRA leave had the law existed when the absence occurred.
