Insights

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On April 1, 2020, the U.S. Department of Labor (DOL) issued new, temporary regulations providing much anticipated guidance on the scope, application, and implementation of the Families First Coronavirus Response Act (FFCRA), which became law on March 18, 2020. March 23, 2020 FFCRA post.

These temporary regulations help to answer questions employers have raised in response to FFCRA.  Employers and their counsel should consult the complete text of the regulations, which is available on the Federal Register website:

Below are highlights from the regulations that employers especially should note:

The Emergency Paid Sick Leave Act (EPSLA):

• Qualifying Reasons for Leave Related to COVID-19: The regulations clarify the COVID-19-related qualifying reasons for which employees may take FFCRA paid sick leave (also referred to as “EPSLA leave”):
  • Subject to a Quarantine or Isolation Order: The regulations define “subject to quarantine or isolation order” to include “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the employee to be unable to work even though his or her employer has work that the employee could perform but for the order;” but specifically state that an employee who is subject to a quarantine or isolation order may take paid sick leave only if, but for the order, he or she would be able to perform work that is otherwise allowed or permitted by the employer, either at the normal workplace or by telework.  The regulations make clear that an employee is not entitled to FFCRA paid sick leave if the employer does not have work for the employee to do as a result of the quarantine or isolation order or other circumstances.
  • Advised by a Health Care Provider to Self-Quarantine:  The regulations clarify that this qualifying reason only applies where a healthcare provider advises an employee to self-quarantine for one of three reasons: (1) the employee has COVID-19; (2) the employee may have COVID-19; or (3) the employee is particularly vulnerable to contracting COVID-19.  This forecloses FFCRA paid sick leave for employees who have been advised to stay home from work due to other concerns, such as heightened anxiety because of COVID-19.  The regulations further clarify that this reason only entitles an employee to FFCRA paid sick leave if the self-quarantine prevents the employee from being able to work or telework.
  • Caring for an Individual:  The regulations state that for purposes of this qualifying reason, an “individual” means an employee’s immediate family member, a person who regularly resides in the employee’s home, 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 were quarantined or self-quarantined.  Therefore, it must be someone with whom the employee has an existing, very close personal relationship.  Further, this reason only applies where, but for the need to care for the individual, the employee would be able to work or telework.  It does not apply where the employer does not have work for the employee to do.
  • Caring for a Son or Daughter: An employee may take FFCRA paid sick leave to care for a son or daughter whose school or place of care has closed due to COVID-19 only if no other suitable person is available to care for the son or daughter during the leave period.  Further, an employee only may take leave for this reason where, but for the need to care for the son or daughter, the employee would be able to work or telework.  Therefore, there must be a need to care for a son or daughter that prevents the employee from working.  This qualifying reason does not apply where the employer does not have work for the employee to do.
• Amount of Leave for Full-Time and Part-Time Employees: The regulations specify the amount of the FFCRA paid sick leave entitlement for qualifying full-time and part-time employees:
  • Full-time employees: An employee who normally is scheduled to work at least 40 hours each workweek is entitled to up to 80 hours of FFCRA paid sick leave.  If an employee does not have a regular weekly schedule, full-time status is determined based on weekly averages during the lesser of the past six months or the entire employment period.
  • Part-time employees: Part-time employees with regular weekly schedules are entitled to up to the number of hours they usually are scheduled to work over two workweeks.  If an employee does not have a regular weekly schedule, leave is determined by multiplying by 14 the number of hours that the employee was scheduled on average to work or agreed to work per day.
• Calculating Amount of Pay: The regulations provide additional guidance on calculation of the employee’s rate of pay during leave, including calculation of the employee’s “average regular rate.”
• Intermittent Leave:  Generally, employees may take FFCRA paid sick leave intermittently (i.e., in separate periods, as opposed to one continuous period of time) only if the employee and the employer agree.  Moreover, onsite employees only may take FFCRA paid sick leave intermittently, with the agreement of their employer, if the leave is to care for a son or daughter whose school or place of care has closed.  If leave is taken for any other qualifying reason, intermittent leave is not permitted for onsite employees, and the employee must use any available leave consecutively.  However, employees who are allowed to or usually telework may agree with their employer to take intermittent leave for any qualifying reason.

The Emergency Family Medical Leave Expansion Act (EFMLEA or Emergency FMLA Leave):

• Qualifying Reason for Leave Related to COVID-19:  Emergency FMLAleave is only available if no other suitable person is available to care for the son or daughter during the leave period.  Further, an employee only may take leave for this reason where, but for the need to care for the son or daughter, the employee would be able to work or telework.  Therefore, there must be a need to care for a son or daughter that prevents the employee from working.  This qualifying reason does not apply where the employer does not have work for the employee to do.
• Calculating Amount of Pay: The regulations provide additional guidance on calculation of the employee’s rate of pay during leave, including calculation of the employee’s “average regular rate.”
• Concurrent Use of Accrued Paid Leave: Employers may require that employees use accrued paid leave concurrently with paid EFMLEA leave (i.e., the last ten weeks of EFMLEA leave).  However, if the employer requires the employee to use paid leave concurrently, it must pay the employee the full day’s pay for any day of such leave.
• Intermittent Leave:  Employees may take Emergency FMLA leave intermittently only if the employee and employer agree.
• Interaction with Normal FMLA: If an eligible employee already has taken some standard leave under the Family and Medical Leave Act (FMLA), the employee may use the remaining portion of the 12-workweek entitlement for Emergency FMLA leave.  If the employee already has taken 12 workweeks of FMLA leave during the applicable twelve-month period, the employee is not entitled to Emergency FMLA leave.

Definitions Applicable to Both FFCRA Paid Sick Leave and Emergency FMLA Leave: While recognizing that many of the terms used in FFCRA borrow definitions from other statutes, such as the FMLA and the Fair Labor Standards Act, the regulations define certain terms with greater clarity:The definition of “son or daughter” is the same as under the FMLA.

• “Child Care Provider” means a provider who receives compensation for providing childcare services on a regular basis.
• “Employer” includes “integrated employers” as determined under the FMLA (i.e., two or more employers whose operations are so intertwined that they are treated as a single employer for purposes of coverage).  Therefore, all employees of integrated employers must be counted to determine if the employers are covered under FFCRA.
• “Telework” is 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.
• “Able to telework” means that the employer has work for the employee; the employer permits the employee to work from the employee’s location; and there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work.

The Small Business Exemption for Employers with Fewer Than 50 Employees

• Following the DOL’s announcement on March 20, 2020 that it would issue “simple and clear criteria” for businesses to apply in determining whether they fall within FFCRA’s small business exemption for employers with fewer than 50 employees, the regulations include some guidance on this exemption.
• Criteria: An employer, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing FFCRA Paid Sick Leave or Emergency FMLA Leave when the imposition of such requirements would “jeopardize the viability of the business as a going concern” based on any of the following criteria:
  • Providing leave would result in expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employee(s) requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; OR
  • There are not 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(s) requesting leave, and these labor or services are needed for the small business to operate at a minimal capacity.
• Determination and Documentation: To elect this small business exemption, the employer must document that a determination has been made under these criteria.  The employer should not send such documentation to the DOL, but rather, should retain the records in its files.  Therefore, for the present, there is no formal application process for this exemption, and no confirmation provided by the DOL that a small business qualifies for the exemption.  Rather, employers who avail themselves of this exemption must preserve documentation demonstrating that they meet the criteria and be prepared to substantiate their determination if they are audited or a claim is filed.

Notice and Documentation Provisions Applicable to Both FFCRA Paid Sick Leave and Emergency FMLA Leave: The regulations clarify that employers may require employees to provide notice and documentation of the need for paid leave.

• Notice of the Need for Leave:
  • Generally, employers may require employees to follow reasonable notice procedures after the first workday the employees take leave.  Notice may not be required in advance and only may be required after the first workday for which the employee takes leave.  What is reasonable is determined on a case-by-case basis.
  • Generally, a requirement of oral notice providing information sufficient to determine whether the requested leave is covered will be reasonable.
  • Generally, it will be reasonable for employers to require employees to comply with their usual and customary policy for requesting leave.
  • If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying leave.
• Documentation of the Need for Leave: An employee is required to provide documentation containing the following information prior to taking paid leave:
  • The employee’s name;
  • The dates for which leave is requested;
  • The COVID-19-related qualifying reason for leave;
  • An oral or written statement that the employee is unable to work or telework due to the qualifying reason;
  • If applicable, the name of the government entity that issued the quarantine or isolation order to which the employee or person in his or her care is subject;
  • If applicable, the name of the healthcare provider who has advised that the employee or person in his or her care self-quarantine due to COVID-19; and
  • If appliable, the name of the child being cared for; the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19; and a statement that no other suitable person is available to care for the child during the period  of requested leave.

Because the COVID-19 pandemic is a fluid situation, and because risks can be presented in a myriad of ways, it is important to analyze each situation on a case-by-case basis, to determine the appropriate course of action.

If you need help with your planning or working through scenarios that present themselves in your workplace, we are here to help.  For assistance, please contact Morningstar Law Group Associate Attorney Hank Gates (hgates@morningstarlawgroup.com or 919.590.0393) Morningstar Law Group Partner, Amie Flowers Carmack, (acarmack@morningstarlawgroup.com or 919.590.0394).