Department of Labor Issues Temporary Regulations Concerning Paid Leave under the Families First Coronavirus Response Act (“FFCRA”)

Category: Special Bulletins
Date: Apr 3, 2020 06:30 PM

On April 1, 2020, the Department of Labor (“DOL”) issued temporary regulations, and related comments, concerning the paid leave provisions under the Families First Coronavirus Response Act (“FFCRA”), including the Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family and Medical Leave Expansion Act (“EFMLEA”). The new set of FFCRA regulations are set forth at 29 C.F.R. §§ 826.10-826.160.  A link to these regulations and comments is accessible here: https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf.   

LCW will be revising our FFCRA leave templates in light of these temporary regulations and the templates will be available early next week.  

Below is a summary of some of the key issues clarified in these regulations, and the comments:

1.       Employees Who Are Furloughed or Subject to Layoff Due to a Lack of Work Are Not Entitled to Emergency Paid Sick Leave.

The regulations and comments clarify that Emergency Paid Sick Leave (“EPSL”) does not apply where the employer does not have work for the employee:

 “An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.

(p. 14; 29 C.F.R. § 826.20 subd. (a)(2).)

2.       State, County, and Local Shelter in Place and Stay at Home Orders Are Considered a “quarantine or isolation order” if Employee is Unable to Work or Telework Due to the Order.

Employees qualify for EPSL if they are unable to work (or unable to telework) due to a need for leave for specified reasons, including because the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.  The regulations clarify that a local quarantine and isolation order related to COVID-19 includes orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” (p. 14; 29 C.F.R. § 826.10, emphasis added). 

3.       Employees Are Eligible for EPSL to Care for an “Individual” Who is an Immediate Family Member, a Person Who Resides with the Employee, or a Similar Person.

The EPSL states that an employee can take paid sick leave where the employee is unable to work because he or she needs to care for an individual who is either subject to a quarantine or isolation order or who has been advised by a health care provider to self-quarantine. The regulations clarify that to  qualify under this provision, the “individual” must have a personal relationship with the employee, and the employee must have a genuine need to care for the individual. Accordingly, § 826.20(a)(5) explains that paid sick leave may not be taken to care for someone with whom the employee has no personal relationship. Rather, the individual being cared for must be an immediate family member, roommate, 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.” (p. 17; 29 C.F.R. § 826.20 subd. (a)(5), emphasis added) 

4.    Clarification Regarding the Need to Care for a Son or Daughter Whose School or Childcare Facility Has Closed

The FFCRA provides that employees are eligible for use of EPSL and/or Public Health Emergency FMLA Leave if they cannot  work or telework because of the need to care for a son or daughter who is out of school or childcare for a COVID-19 related reason. The DOL clarifies that this only applies “when the employee needs to, and actually is, caring for his or her child. Generally, an employee does not need to take such leave if another suitable individual—such as a co-parent, co-guardian, or the usual child care provider—is available to provide the care the employee’s child needs.” Therefore, if another parent or other person is available to provide child care, this leave can be denied.  (p. 18; 29 C.F.R. § 826.20 subd. (a)(6); 29 C.F.R. § 826.20 subd. (b)).  The regulations further clarify that the definition of “son or daughter” is  the same as the FMLA definition, which includes a son or daughter 18 years of age or older who is incapable of caring for himself or herself because of a mental or physical disability. (p. 19-20; 29 C.F.R. § 826.10).

5. Clarification Regarding the Exemption to the FFCRA Leaves for Small Employers with Less than 50 Employees

The FFCRA authorizes the Department of Labor to provide an exemption to the leaves provided by the FFCRA for employers with fewer than 50 employees when providing leave would jeopardize the viability of the small business as a going concern.  The regulations provide that this exemption may apply to these small businesses, which include non-profit organizations, only if the employee seeks to use such leave to care for a child whose school or place of care is closed and doing so would jeopardize the viability of the small business as a going concern.

If an employee of a small business seeks to use paid sick leave under the Emergency Paid Sick Leave Act for one of the other qualifying reasons (such as if the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19), the employer is not exempt from providing such leave.

A small business may also only claim the exemption if the leave requested would:

  • result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • 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 or employees requesting leave, and the labor or services are needed for the small business to operate at a minimal capacity.

Businesses that make this determination are also required to document that they have made a determination that this exemption is applicable, and they are required to retain this documentation.  Further, regardless of whether a small business chooses to exempt one or more employees, the employer is still required to post the required Federal notices regarding employees’ rights to FFCRA leaves. (pp. 39-41; 29 C.F.R. § 826.40 subd. (b))

6.    Clarification Regarding the Documentation Required to Support FFCRA Leaves

The Regulations state that the documentation required to support FFCRA leaves “must include 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.” An employee must also provide additional documentation depending on the COVID-19 qualifying reason for leave:

An employee requesting paid sick leave under § 826.20(a)(1)(i) must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject. An employee requesting paid sick leave under § 826.20(a)(1)(ii) must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons. An employee requesting paid sick leave under § 826.20(a)(1)(iv) to care for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request. An employee requesting to take paid sick leave under § 826.20(a)(1)(v) or expanded family and medical leave to care for his or her child must provide the following information: (1) the name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

For leave taken under the FMLA for an employee’s own serious health condition related to COVID-19, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply. See 29 CFR 825.306.

In summary, an employer must require proper documentation in order to provide the FFCRA leave, and the documentation may also be needed in order to receive the federal payroll tax credit to reimburse employers for this paid leave.  (pp. 50-51; 29 C.F.R. § 826.100)

The regulations provide that an employer is obligated to retain any documentation provided by an employee related to FFCRA leave for a period of four (4) years, regardless of whether the leave was granted or denied. The regulations provide that if an employee provides an oral statement to support request for FFCRA leaves, the employer is still required to document and retain such information for that four (4) year period. In essence, employers must reduce the oral request to writing and maintain that record. (p. 56; 29 C.F.R. § 826.140)

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