Last Thursday, the Department of Labor
published
temporary regulations for the Families First Cornavirus Relief Act, which
governs the requirements for emergency sick leave and emergency Family Leave
during 2020.
The regulations fill many
of the gaps left by the statutory language governing how telework working hours
will be calculated, whether the Governor’s Stay at Home Order entitles them to
emergency sick pay, what must be obtained and documented in order to
self-quarantine, when child care responsibilities prevent an employee from
teleworking, what health care providers are exempt from the FFCRA, small-employer
exemption, intermittent family leave, etc.
They are scheduled to be published in the Federal Register on Friday and could conceptually be modified before then.
1.
Quarantine
and Isolation Orders. The Governor’s
Stay at Home Order would qualify as
an isolation or quarantine order, BUT it only entitles the employee to emergency
sick leave IF the ONLY reason the employee is not working is because of that
Order. Because the Order also closes
many businesses, prevents customers from purchasing and causes rampant
unemployment, the Order may justify an unemployment claim but it cannot be the
cause of the employee not being able to work and entitled to full pay from the
employer under the FFCRA. “The question
is whether the employee would be able to work or telework “but for” being
required to comply with a quarantine or isolation order.”
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.
[Note: This analysis holds
even if the closure of the coffee shop was substantially caused by a stay-at
home order. If the coffee shop closed due to its customers being required to
stay at home, the reason for the cashier being unable to work would be because
those customers were subject to the stay-at-home order, not because the cashier
himself was subject to the order. Similarly, if the order forced the coffee
shop to close, the reason for the cashier being unable to work would be because
the coffee shop was subject to the order, not because the cashier himself was
subject to the order.]
2.
Telework. The Rule relaxes the concept of working hours
so that it only covers the hours that the employee actually works, instead of
compensating the employee for all hours between the starting and stopping time.
“However, an employer is not required to compensate employees for unreported
hours worked while teleworking for COVID-19 related reasons, unless the
employer knew or should have known about such telework.” As discussed in more detail below, while the
Rule recognizes that an employee may not be able to work at all or most of the
day from home because of childcare responsibilities caused by the pandemic, it
places limits on an employee’s ability to claim an inability to telework when
the employer has been flexible, the children are above a certain age and
another parent is available in the home to assist.
3.
Medical
Provider Recommendation to Self-Quarantine. I have been getting questions about this
because when a non-healthcare employee is exposed at work, they are being sent
home and told to self-quarantine (whether firefighters, retail, warehouse,
prison, etc.) and this would obviously affect family/household members and
co-workers. The regulations require this recommendation to come from a
healthcare provider and, as reflected in the IRS regulations, should be
documented by name of physician and date before an employee will be entitled to
emergency sick leave. If the
quarantined employee is still able to telework, s/he will not be entitled to
paid sick leave, unless there are extenuating circumstances that prevent the
employee from teleworking (such as a power outage):
An employee who is
self-quarantining is able to telework, and therefore may not take paid sick
leave for this reason, if (a) his or her employer has work for the employee to
perform; (b) the employer permits the employee to perform that work from the
location where the employee is self-quarantining; and (c) there are no
extenuating circumstances, such as serious COVID-19 symptoms, that prevent the
employee from performing that work.
4.
Exhibiting
Symptoms and Seeking Diagnosis. This
is one of the most challenging issues at present because tests are not readily
available except to the very sick, the test results can take more than a week,
most people are anxious about common symptoms and relatively few people are
testing positive.
an employee experiencing
COVID-19 symptoms may take paid sick leave, for instance, for time spent
making, waiting for, or attending an appointment for a test for COVID-19. But, the employee may not take
paid sick leave to self-quarantine without seeking a medical diagnosis.
An employee who is waiting for the results of a test is able to telework, and
therefore may not take paid sick leave, if: (a) his or her employer has work
for the employee to perform; (b) the employer permits the employee to perform
that work from the location where the employee is waiting; and (c) there are no
extenuating circumstances, such as serious COVID-19 symptoms, that may prevent
the employee from performing that work. An employee may continue to take leave
while experiencing any of the symptoms specified at § 826.20(a)(4), however; or
may continue to take leave after testing positive for COVID-19, regardless of
symptoms experienced, provided that the health care provider advises the
employee to self-quarantine. In addition, an employee who is unable to telework
may continue to take paid sick leave under this reason while awaiting a test
result, regardless of the severity of the COVID-19 symptoms that he or she
might be experiencing. In the case of an employee who exhibits COVID-19
symptoms and seeks medical advice but is told that he or she does not meet the
criteria for testing and is advised to self quarantine, he or she is eligible
for leave under the second reason, provided he or she meets all the
requirements spelled out above.
5.
Caring
for Ill Family. Again, this provision does not apply if the employee has
been furloughed or laid off because the Stay-at-Home Order closed/restricted
the employer’s business or if the employee is able to telework. It also only applies if the quarantined
person is family or housemate who has been advised by a medical provider to
self-quarantine.
The fourth reason for paid
sick leave applies where an employee is unable to work because he or she needs
to care for an individual who is either: (a) subject to a Federal, State, or
local quarantine or isolation order; or (b) has been advised by a health care
provider to self quarantine due to concerns related to COVID-19. This
qualifying reason applies only if but for a need to care for an individual, the
employee would be able to perform work for his or her employer. Accordingly, an employee caring for an
individual may not take paid sick leave if the employer does not have work for
him or her. Furthermore, if 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. Additionally, the
individual being cared for must: (a) be subject to a Federal, State, or local
quarantine or isolation order as described above; or (b) have been advised by a
health care provider to self-quarantine based on a belief that he or she has
COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.
6.
Caring
for Children. While the regulation recognizes that
employees may not be able to telework because of child care responsibilities,
it places limits on the ability to make that argument. Thus, “an employee may take paid sick leave
to care for his or her child only 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. “
7.
Exempted
Healthcare Providers. The FFCRA exempts
from the leave rights healthcare providers excluded by the employer, but does
not affect the employees’ rights under the employer’s pre-existing paid and
unpaid leave policies. The regulation
gives an extremely broad reading to the phrase “healthcare provider” and does
not limit the definition to how “healthcare provider” is defined in the FMLA
for purposes of obtaining a medical diagnosis.
Under the regulation, healthcare provider employees will
include any individual who is capable of providing health care services
necessary to combat the COVID-19 public health emergency. Such individuals
include not only medical professionals, but also other workers who are needed
to keep hospitals and similar health care facilities well supplied and operational.
They further include, for example, workers who are involved in research,
development, and production of equipment, drugs, vaccines, and other items
needed to combat the COVID-19 public health emergency. Accordingly, the
Department is adopting a definition of “health care provider” that is broader
than the diagnosing medical professionals under § 825.102 for the limited
purpose of identifying employees whom an employer may exclude under sections
3105 and 5102(a) of the FFCRA.
8.
500
Employee Threshold. Whether an employer is subject to the FFCRA is made as
of the date the leave is requested and can change over time. Full-time, part-time and temporary employees
in the U.S. count, but independent contractors and employees outside the U.S.
do not. The headcount will be aggregated
for joint and integrated employers.
This determination is
dependent on the number of employees at the time an employee would take leave. For example, if an employer
has 450 employees on April 20, 2020, and an employee is unable to work starting
on that date because a health care provider has advised that employee to
self-quarantine because of concerns related to COVID-19, the employer must
provide paid sick leave to that employee. If, however, the employer hires 75
new employees between April 21, 2020, and August 3, 2020, such that the
employer employs 525 employees as of August 3, 2020, the employer would not be
required to provide paid sick leave to a different employee who is unable to
work for the same reason beginning on August 3, 2020.
9.
Small
Employer Exception. The FFCRA
exempts a small employer with fewer than 50 employees when providing the paid
leave would jeopardize the entity’s viability as an ongoing concern. To create an objective standard, the DOL will
evaluate such claim based on the employer’s documentation of whether:
(1) such leave would cause
the small employer’s expenses and financial obligations to exceed available
business revenue and cause the small employer to cease operating at a minimal
capacity; (2) the absence of the employee or employees requesting such leave
would pose a substantial risk to the financial health or operational capacity
of the small employer because of their specialized skills, knowledge of the
business, or responsibilities; or (3) the small employer cannot find enough
other workers who are able, willing, and qualified, and who will be available
at the time and place needed, to perform the labor or services the employee or
employees requesting leave provide, and these labor or services are needed for
the small employer to operate at a minimal capacity. For reasons (1), (2), and
(3), the employer may deny paid sick leave or expanded family and medical leave
only to those otherwise eligible employees whose absence would cause the small
employer’s expenses and financial obligations to exceed available business
revenue, pose a substantial risk, or prevent the small employer from operating
at minimum capacity, respectively.
1 Public Employers are covered by the
FFCRA regardless of size, but may exempt the broadly-defined emergency
responders.
Intermittent Leave. “One basic condition applies to all employees
who seek to take their paid sick leave or expanded family and medical leave
intermittently—they and their employer must agree. Absent agreement, no leave
under the FFCRA may be taken intermittently.”
The agreement should encompass both the fact of intermittent leave and
the increments in which such leave may be taken. Teleworking employees and employees with
childcare responsibilities may agree to take intermittent leave as agreed, but
employees who report to the workplace may only do so when they are not
contagious.
Subsection (b)(2) prohibits employees who report to an
employer’s worksite from taking paid
sick leave intermittently, notwithstanding any agreement between the
employer and employee to the contrary, if the leave is taken because the
employee: (1) is subject to a Federal, State, or local quarantine or isolation
order related to COVID-19; (2) has been advised by a health care provider to
self-quarantine due to concerns related to COVID-19; (3) is experiencing
symptoms of COVID-19 and is taking leave to obtain a medical diagnosis; (4) is
caring for an individual who either is subject to a quarantine or isolation
order related to COVID-19 or has been advised by a health care provider to
self-quarantine due to concerns related to COVID-19; or (5) is experiencing any
other substantially similar condition specified by the Secretary of Health and
Human Services. As the Department explains in subsection (b)(2), where paid
leave is taken for these reasons, “the employee is, may be, or is reasonably
likely to become, sick with COVID-19, or is exposed to someone who is, may be,
or is reasonably likely to become, sick with COVID-19.” In these situations, the employee may not take intermittent
leave due to the unacceptably high risk that the employee might spread COVID-19
to other employees when reporting to the employer’s worksite. Once such an
employee begins taking paid sick leave for one or more of these qualifying
reasons, the employee must continue to take paid sick leave each day until the
employee either uses the full amount of paid sick leave or no longer has a
qualifying reason for taking paid sick leave.
1 Intersection and Sequencing of Leave. The employer may not designate paid
leave under its own policies to supplement or replace emergency sick leave
under the FFCRA. However, once the
employee has exhausted their two weeks of paid sick leave under the FFCRA, any
further leave is unpaid unless covered by the employer’s own policies or the
emergency family leave for childcare.
If the employee has already taken FMLA leave in 2020, that amount of
FMLA leave will be deducted from the employee’s remaining eFMLA leave under the
FFCRA. If the employer and employee mutually agree, the employer may supplement
the employee’s paid childcare leave under the FFCRA with accrued paid leave
(but the caps remain for tax credits).
The DOL is not requiring employers to follow the FMLA regulations for
Eligibility and Designation notices for emergency leave.
Section 826.160(c)
explains the sequencing of expanded family and medical leave with other types
of leave. No employer shall require, coerce, or unduly influence an employee to
use another source of paid leave before taking expanded family and medical
leave. However, an eligible employee may elect to use, or an employer may
require that an employee use, leave the employee has available under the
employer’s policies to care for a child, such as vacation or personal leave or
paid time off, concurrently. If expanded family and medical leave is used
concurrently with another source of paid leave, then the employer has to pay
the employee the full amount to which the employee is entitled under the
employer’s preexisting paid leave policy for the period of leave taken, even if
that amount is greater than $200 per day or $10,000 in the aggregate. But the
employer’s eligibility for tax credits is still limited to the cap of $200 per
day or $10,000 in the aggregate.
Employee Notice of Need for Leave. The employee is required to give oral notice
of the need for leave as soon as practical.
an employer may require
employees to follow reasonable notice procedures as soon as practicable after
the first workday or portion of a workday for which an employee receives paid
sick leave in order to continue to receive such leave. Sections 826.90(b) and
(c) explain that it will be reasonable for an employer to require notice as
soon as practicable after the first workday is missed, and to require that
employees provide oral notice and sufficient information for an employer to
determine whether the requested leave is covered by the FFCRA. The employer may
not require the notice to include documentation beyond what is allowed by §
826.100. [That regulation requires
documentation which includes 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.]
Section 826.90(d) states
that it is reasonable for the employer to require the employee to comply with
the employer’s usual notice procedures and requirements, absent unusual
circumstances. 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 the request for leave.
Additional Employee documentation. To the extent that the employee’s request is
already covered by the FMLA, the normal documentation requirements still apply
for an employee’s own illness or need to care for immediate family. Depending on the basis of the FFCRA leave
request, the employee must also
provide the following: 1) the government entity that issued the quarantine or
isolation order to which the employee is subject; 2) the name of the health
care provider who advised him or her to self-quarantine for COVID-19 related
reasons; 3) the name of the child being care for, the name of the school, place of care, or
child care provider that closed or became unavailable due to COVID-19 reasons,
and a statement representing that no other suitable person is available to care
for the child during the period of requested leave.
Layoffs. “[T]he new statute does not
protect an employee from employment actions, such as layoffs, that would have
affected the employee regardless of whether the leave was taken. The employer
must be able to demonstrate that the employee would have been laid off even if
he or she had not taken leave. This provision tracks the existing provision
under the FMLA in 29 CFR 825.216. The employer has the same burden of proof to
show that an employee would not otherwise have been employed at the time
reinstatement is requested in order to deny restoration to employment.”
NOTICE: This summary is designed merely to
inform and alert you of recent legal developments. It does not constitute legal
advice and does not apply to any particular situation because different facts
could lead to different results. Information here can change or be amended
without notice. Readers should not act upon this information without legal
advice. If you have any questions about anything you have read, you should
consult with or retain an employment attorney.
