Eric J. Uhl / April 6, 2020

The U.S. Department of Labor (DOL) issued its new rule under the Families First Coronavirus Response Act (FFCRA) regarding the new emergency paid sick leave and expanded FMLA leave requirements. The FFCRA became effective as of April 1. The new rule is lengthy, 124 pages including summaries and explanations of the new rule. You can find the new rule on the DOL’s webpage here. The actual regulation begins on page 83 of the DOL’s document. Here is a summary of some of the important points to note about the new rule.

  • When is an employee subject to a Federal, State or local quarantine?

One of the qualifying reasons for emergency paid sick leave under the FFCRA is when an employee is “subject to a Federal, State or local quarantine or isolation order.” The DOL’s rule provides that a quarantine or isolation order includes “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders” that cause the employee to be unable to work even though the employer has work available. The rule states that the qualifying reason includes circumstances when such orders advise categories of people (for example, older people or people with certain medical conditions) to shelter in place or stay at home. The DOL rule also provides that an employee may take emergency paid sick leave for this reason only if, “but for being subject to the order,” the employee would be able to perform work that is otherwise available. Accordingly, an employee subject to a quarantine or isolation order may not take emergency paid sick leave when an employer does not have work for the employee to perform. According to the DOL, the key question is “whether the employee would be able to work or telework ‘but for’ being required to comply with a quarantine or isolation order.”

  • Who is a “Health Care Provider” for purposes of the exclusion?

Under the FFCRA, an employer may choose to exclude “Health Care Providers” (and “Emergency Responders”) from receiving emergency paid sick leave and expanded FMLA leave. For this purpose only, the DOL’s rule defines “Health Care Provider” to include:
(1) anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider;
(2) any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity;
(3) any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions;
(4) any individual employed by an entity that contracts with any of the institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility;
(5) anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; and
(6) any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.

  •  May employees use leave on an intermittent basis?

Under the new rule, employees who want to use emergency paid sick leave or expanded FMLA leave on an intermittent basis must come to an agreement with their employer regarding intermittent leave as well as the increments of time in which the leave may be taken. In the absence of such an agreement, the employee may not take leave under the FFCRA on an intermittent basis.

For an employee who is able to telework and who has employer consent, the employee may take intermittent emergency paid sick leave for any qualifying reason or expanded FMLA leave. The rule provides “broad flexibility” for employers and teleworking employees to reach an agreement because employees who telework do not present the same risk of spreading COVID-19 to other employees.

For an employee who works at the worksite, the employee may not take intermittent emergency paid sick leave if the leave is needed 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. The reason for this restriction is that the employee may be or become sick with COVID-19. With the employer’s agreement, a worksite employee may take emergency paid sick leave or expanded FMLA leave on an intermittent basis to care for the employee’s child whose school or place of care is closed, or if the child care provider is unavailable, because of reasons related to COVID-19.

  • What documentation is required?

The new rule specifies what records an employer may request from employees and what records they are required to keep under the FFCRA. According to the rule, documentation supporting an employee’s request for emergency paid sick leave or expanded FMLA leave must include an employee’s signed statement with: (1) the employee’s name; (2) the dates the employee is requesting leave; (3) the qualifying reason for leave; and (4) a statement that the employee is unable to work or telework because of the qualifying reason.

In addition, depending on the qualifying reason for leave, employers may need to acquire additional documentation. An employee requesting emergency paid sick leave due to a federal, state or local quarantine or isolation order related to COVID-19 must provide the name of the government entity that issued the order. An employee requesting emergency paid sick leave due to a health care provider advising self-quarantine must provide the name of the health care provider. An employee requesting emergency paid sick leave to care for an individual subject to a quarantine or isolation order, or advised by a health care provider to self-quarantine, must provide the identity of either (1) the government entity that issued the quarantine or isolation order, (2) the health care provider who advised the self-quarantine. An employee requesting to take emergency paid sick leave or expanded FMLA leave to care for a child due to a school or child care closures, or unavailability of child care due to a public health emergency, must provide: (1) the name of the child; (2) the name of the school, place of care, or child care provider that closed or became unavailable; and (3) a statement representing that no other suitable person is available to care for the child during the period of the requested leave.

In addition to these documentation requirements, the pre-existing FMLA certification requirements still apply for leave taken for an employee’s 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.

Note also that the DOL’s rule refers to IRS guidance for more information about the documentation employers may require from employees seeking paid leave under the FFCRA. The DOL’s rule states that an employer may not seek notice from employees that goes beyond what is the DOL’s rule and the IRS guidance. The IRS’s guidance informs employers how to benefit immediately from tax credits that completely offset the paid leave required under the FFCRA. The IRS’s guidance also details the kind of information and documentation employers must maintain to claim the tax credits, with a checklist for the categories of documentation employers must maintain and the information employers should document or include on FFCRA-tailored leave request forms to support an employee’s need for leave.

  • How do I calculate the rate of pay?

The FFCRA requires employers to provide paid leave at employees’ “regular rate” of pay. The “regular rate” under the FFCRA uses the definition under the Fair Labor Standards Act (FLSA) for determining the regular rate of pay for purposes of computing overtime payments. In other words, employer must determine the total amount of pay in a work week, including incentive pay, non-discretionary bonuses, and other non-hourly compensation.
When an employee is paid an hourly rate, works a fixed schedule, and earns no other additional pay, then the calculation is relatively simple. In such a case, the regular rate generally is the employee’s hourly rate of pay for the number of hours worked in the work week.

When an employee’s compensation and/or hours vary from workweek to workweek, however, the regular rate requires a calculation each workweek. According to the DOL, the regular rate should be representative of the employee’s regular rate from week to week, calculated using an average weighted by the number of hours worked each workweek. To perform the calculation, employers must look at each preceding, full workweek that the employee has been employed during the six-month period ending on the date on which the leave is taken.

  • What about regular FMLA and other available paid leave?

The new DOL rule confirms that emergency paid sick leave is in addition to—and not a substitute for—other sources of paid leave available to employees, including paid leave that employees have already accrued before the April 1, 2020, effective date of the FFCRA. However, employees are not entitled to retroactive reimbursement or financial compensation for any leave taken prior to the effective date, even they took the leave for COVID-19 related reasons.

For expanded FMLA leave under the FFCRA, the new rule provides that the FFCRA creates an additional reason for taking the 12-week entitlement under the FMLA: to care for a son or daughter whose school or place of care is closed or when a child care provider is unavailable due to COVID-19. Accordingly, an employee’s ability to take expanded FMLA leave depends on whether and to what extent the employee has already used any of the employee’s available 12 weeks of leave during the applicable 12 month period. If an employee has already taken some amount of FMLA leave in the applicable 12 month period, then the employee may not be able to take the a full 12 weeks of expanded FMLA leave under the FFCRA.

  • What about the small business exception for employers with fewer than 50 employees?

The DOL’s new rule provides an exception to providing emergency paid sick leave and expanded FMLA leave for employers with fewer than 50 employees. Employers with fewer than 50 employees are not required to provide emergency paid sick leave or expanded FMLA leave to employees who need to care for their son or daughter when a school or place of care has closed, or a child care provider is unavailable, due to COVID-19, if: (1) providing the leave would raise expenses and financial obligations above available business revenue such that the employer would cease operating at a minimal capacity; (2) the absence of the employee requesting leave would pose a substantial risk to the employer’s financial health or operations because of the employee’s specialized skills, knowledge of the business, or responsibilities; or (3) the employer cannot find enough able, willing, available, and qualified employees to perform the work of the employee requesting the leave.

The DOL’s rule provides that small employers must document the facts and circumstances justifying the denial of the leave and retain those records in its own files.

The DOL’s new rule is detailed and complicated. Please let us know if you have any questions.

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