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U.S. Department of Labor Issues Temporary Regulations for Families First Coronavirus Response Act

4/8/20

By: Catherine Scott, Natalie Pulley and Gregory Blueford

On April 6, 2020, U.S. Department of Labor (“DOL”) published its most comprehensive interpretation of the paid leave provisions of the Families First Coronavirus Response Act (the “FFCRA”). These temporary regulations expand on the additional guidance provided by the DOL, which our firm previously discussed here.

Key highlights of the temporary rule include:

EMERGENCY PAID SICK LEAVE ACT (“EPSLA’)

• How to Calculate Entitlement to Paid Sick Leave

Full-Time Employees: Full time employees are entitled to 80 hours of paid sick leave. Employees with varying schedules should take the weekly average of six-months of their employment or the average since their start date (whichever time period is less) prior to the date on which leave is requested to determine if employee is a full-time employee. An individual employee is limited to a maximum of two weeks under the EPSLA (even if this employee changes jobs in a calendar year).

Part-Time Employees:  A part-time employee, scheduled to work fewer than 40 hours per week, is typically entitled to paid sick leave equal to the number of hours he or she is scheduled to work over a two-workweek period. For a part-time employee with a varying schedule who has worked at least 6 months with the employer, the employee is owed fourteen times (14x) the average number of hours the employee was scheduled to work per calendar day over the six month period ending on the date on which the employee takes paid sick leave. An employer may also use twice the number of hours that an employee was scheduled to work per workweek, on average, over the six-month period.

If the employee has been employed for less than 6 months, the employee is entitled to fourteen times (14x) the expected number of hours the employee and employer agreed to at the time of hiring that the employee would work, on average, each calendar day. In the absence of an agreement, a part-time employee with a varying schedule who has been employed for less than six months is entitled to fourteen times (14x) the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type.

• Six Qualifying Reasons Employees Are Entitled to Emergency Paid Sick Leave (“EPSLA”)

Reason #1:  Subject to Federal, State or Local Quarantine or Isolation Order.  If an employee is unable to work or telework because he or she is subject to a COVID-19 quarantine or isolation governmental order (including the now well-known “Stay-in-Shelter” and “Shelter-in-Place” Orders), the key consideration is whether the employee would be able to work or telework “but for” the quarantine or isolation order.   For example, an employee who is subject to a Stay-in-Shelter Order, but whose worksite is closed because of a Stay-in-Shelter Order (even the same one), would not qualify for EPSLA leave.  If, on the other hand, an employee’s worksite is open, but the employee cannot go into the worksite because of a Stay-in-Shelter Order, then the employee would be eligible under this category of the EPSLA.  Also, an employee permitted to telework would not qualify for paid leave under the EPSLA.

Reason #2: Healthcare Provider Advises Employee to Self-Quarantine for COVID-19. Advice to self-quarantine must be based on the health care provider’s belief that the employee has, may have or is particularly vulnerable to COVID-19.

Reason #3: Employee is Experiencing COVID-19 Symptoms and is Seeking Medical Diagnosis. This is limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis. Note, the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.

Reason #4: Employee Caring For Another. An employee may be eligible under the EPSLA because: (a) they need to care for an individual who is subject to quarantine or isolation order (the individual must be an immediate family member, roommate, or similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person) and, but for that order, the employee would be able to work; or (b) the employee’s family member has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

Reason #5: Unable to Work Due to Childcare. This applies if an employee is unable to work because the employee needs to care for his or her son or daughter because: (a) the child’s school or place of care has closed; or (b) the childcare provider is unavailable, due to COVID-19 related reasons. This will apply only when the employee needs to, and actually is, caring for his or her child (and another suitable individual such as a co-parent, co-guardian, or the usual childcare provider cannot). The definition of “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.

Reason 6: Catch-All for Unknown Future Considerations. An employee is unable to work because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT (“EFMLEA”)

The DOL clarified that the first two weeks of unpaid leave are defined as 14 calendar days and not 10 workdays.

The DOL also provided calculations for the rate of pay for employees, again differing between employees with “normal schedules” and those with variable schedules.

• Normal (i.e. Routine) Workweek Pay: Two-thirds (2/3) of an employee’s full regular rate of pay times the number of hours the employee would normally be scheduled to work that day;
• Variable Schedule (6+ Months Work): Average number of hours the employee was scheduled per day over the six-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type; and
• Variable Schedule (Less Than 6 Months Work): The reasonable expectation of the average number of hours per day that the employee would normally be scheduled to work at time of hire. Absent an agreement, employer should use the average number of hours per workday that the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type.

Nevertheless, all employees are due up to a maximum of $200 per day or $10,000 in total for the additional ten workweeks.

LEAVE TO CARE FOR A CHILD DUE TO SCHOOL OR PLACE OF CARE CLOSURE OR CHILD CARE UNAVAILABILITY: INTERSECTION OF EPSLA, EFMLEA AND FMLA

Both the EPLSA and the EFMLEA permit an employee to take paid leave when needed to care for his or her son or daughter whose school or place of care is closed, or childcare provider is unavailable due to COVID-19 reasons. Where an employee qualifies under both Acts, the employee may take paid leave under the EPSLA, which would run concurrently with any leave entitlement under the EFMLEA. Employers cannot, however, force employees to use paid EPSLA in lieu of unpaid EFMLEA.

Where an employee has already taken FMLA leave in the current 12-month leave year as defined by the employer, the maximum 12 weeks of EFMLEA leave is reduced by the amount of FMLA leave entitlement taken in that year. Therefore, if an employee has taken 12 weeks of FMLA leave in the calendar year as defined by the employer and prior to April 1, 2020, then the employee is not entitled to any EFMLEA leave.  However, even if an employee has already used his or her 12 weeks of FMLA leave, he or she may still take EPSLA leave for COVID-19 qualifying reasons. If an employee first takes leave under the EPSLA for a different qualifying reason, it does not prevent an employee from later taking EFMLEA (only the first two weeks will be unpaid.)

Employees are limited to a total of twelve weeks of leave under the EFMLEA, even if the applicable time period (April 1, 2020, to December 31, 2020) spans two twelve-month leave periods under the FMLA. Employers and employees may agree, where federal or state law permits, to have employee’s accrued, unused paid leave supplement pay under the EFMLEA so the employee receives the full amount of his or her pay. For example, an eligible employee and employer may agree to supplement the EFMLEA by substituting one-third hour of accrued vacation leave for each hour of EFMLEA.

NOTICE REQUIREMENTS

•  Employer Notice Requirements

The FFCRA requires employers keep posted in a conspicuous place where employees or job applicants at a worksite may view it a notice of the law’s requirements, which can be downloaded, free of charge, from the WHD website at https://www.dol.gov/whd. The DOL has not adopted employer notice requirements or employer-specific notice obligations that are adopted in the FMLA regulations. However, the DOL suggests that employers should apply their FMLA practices to EFMLEA leave users if possible.

•  Employee’s Notice Requirements

An employee must provide his or her employer documentation in support of paid sick leave or expanded family and medical leave. Such documentation 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.

• Under Reason #1, the employee must also provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.
• Under Reason #2, the employee must also provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.
• Under Reason #3, the normal FMLA certification requirements still apply.
• Under Reason #4, the employee must also 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.
• Under Reason #5, the employee must also provide: (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. The employee must give notice as soon as practicable. If 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 the requested leave.

The employer also may request an employee to provide such additional material as needed for the employer to support a request for tax credits pursuant to the FFCRA.

 POST-LEAVE REQUIREMENTS

• Return to Work

In most instances, an employee is entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave in the same manner that an employee would be returned to work after FMLA leave. For employers with fewer than 25 employees, the restoration provisions do not apply if all four of the following conditions are met:

(a) The employee took leave to care for his or her son or daughter whose school or place of care was closed or whose childcare provider was unavailable;

(b) The employee’s position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by a public health emergency (i.e., due to COVID-19 related reasons) during the period of the employee’s leave;

(c) The employer made reasonable efforts to restore the employee to the same or an equivalent position; and

(d) If the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts for a period of time to contact the employee if an equivalent position becomes available. The period of time is specified to be one year beginning either on the date the leave related to COVID-19 reasons concludes or the date twelve weeks after the employee’s leave began, whichever is earlier.

• Recordkeeping

An employer is required to retain all documentation provided pursuant to EPSLA and/or EFMLEA for four years, regardless of whether leave was granted or denied. If an employer denies an employee’s request for leave pursuant to the small business exemption (under 50 employees), the employer must document its authorized officer’s determination that the prerequisite criteria for that exemption are satisfied and retain such documentation for four years.

A more detailed explanation of how Employers may claim tax credits can be found at https://www.irs.gov/forms-pubs/about-form-7200 and https://www.irs.gov/pub/irs-drop/n-20-21.pdf.

• Prohibited Acts and Enforcement

Under the EPSLA, employers are prohibited from discharging, disciplining, or discriminating against any employee because the employee took paid sick leave, initiated a proceeding under or related to paid leave, or testified or is about to testify in such a proceeding. An employer who violates the paid sick leave requirements is considered to have failed to pay the minimum wage required by section 6 of the FLSA, and an employer who violates the prohibition on discharge, discipline, or discrimination is considered to have violated section 15(a)(3) of the FLSA. However, an employee may not bring a private action against an employer under the EFMLEA if the employer, although subject to the EFMLEA, is not otherwise subject to the FMLA.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at coronavirustaskforce@fmglaw.com.

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**