On April 1, 2020—the effective date of the Families First Coronavirus Response Act (FFCRA)—the U.S. Department of Labor (DOL) issued temporary regulations to interpret and enforce the landmark legislation passed by Congress “to assist working families facing public health emergencies” arising out of the COVID-19 pandemic. The Regulations, which expire with the FFCRA on December 31, 2020, answer many of the questions companies have raised after reviewing the statutory language of the FFCRA and the DOL’s previous guidance in the form of 59 Questions and Answers (Q&As: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions) issued in late March.
The FFCRA contains two components: (1) the Emergency Paid Sick Leave Act (EPSLA), which entitles certain employees to take up to two weeks of paid sick leave; and (2) the Emergency Family and Medical Leave Expansion Act (EFMLEA), which permits certain employees to take up to twelve weeks of expanded family and medical leave, ten of which are (partially) paid, for specified reasons related to COVID-19. The statutory language of the FFCRA sets out generally the employers who are subject to the statute, the employees who are eligible for leave under either the EPSLA, the EFMLEA or both, the reasons qualifying an employee for leave, the calculation of paid leave, and the consequences to a company for not providing protected FFCRA leave. The statutory language also sets out in broad strokes exemptions from the FFCRA for small businesses and for employers of healthcare providers and emergency responders.
Since March 24, the DOL has issued interpretive guidance primarily in the form of Q&As on each of these topics. It has also published and updated a Notice Poster for covered employers to post to satisfy the FFCRA mandate (the most recent version is available here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf).
As part of the guidance, the DOL addressed several threshold issues surrounding applicability, eligibility and administrative processes, including those that involve joint and integrated employers, exempt entities, employee classifications, intermittent use of leave, documentation to support leave benefits and reimbursements, and the interplay between existing leave entitlements and new leave entitlements. Our summary of the DOL’s Q&As is available here: https://www.wallerlaw.com/news-insights/3524/Department-of-Labor-issues-additional-guidance-on-the-Families-First-Coronavirus-Response-Act.
The Regulations provide both further guidance and the force of federal regulation. The Regulations span over 40 pages, and clock in at over 120 pages with their explanatory preamble, so there is plenty to digest. A bullet point summary of these Regulations is available here: https://www.wallerlaw.com/news-insights/3571/Only-one-hour-to-read-and-determine-responsibilities-under-the-FFCRA-A-practical-primer-of-what-employers-need-to-know-now. Some of the Regulations confirm what companies already understood from reviewing the statute or the DOL’s Q&As. This bulletin—written in Question and Answer format—highlights what we believe to be the most important takeaways from the Regulations that we did not know before from the DOL’s prior guidance.
Are the existing Family Medical Leave Act regulations applicable to the EFMLEA?
In general, yes. The EFMLEA statute is an amendment to the FMLA that adds a sixth qualifying reason for FMLA leave to the existing 12-week FMLA entitlement and is not a new act per se. Accordingly, all FMLA regulations and defined terms apply to the EFMLEA (but not necessarily the EPSLA) unless specifically noted in the EFMLEA or its regulations as being different. This means, for example, that if an employee takes leave under the EFMLEA, she is entitled to be restored to the same or an equivalent position upon return in the same manner as an employee would be returned to work after FMLA leave. The FMLA’s job restriction and equivalent position regulations apply.
There are a few notable cases where the EFMLEA and FMLA regulations diverge. For example, employees are only entitled to twelve total weeks of paid leave under the EFMLEA between April 1 to December 31, 2020 regardless of whether that period spans two of the 12-month periods used by the employer for other types of FMLA leave. FMLA leave taken between April 1 and December 31 for other traditional qualifying events, however, reduces the amount of expanded family and medical leave available under the EFMLEA. Similarly, EFMLEA leave counts towards the twelve total weeks of unpaid leave an employee otherwise would have been entitled to under the FMLA. EFMLEA and FMLA leave taken during this time period essentially run concurrently.
Additionally, the definition of “health care provider” under the FMLA is the same for the purposes of determining who may advise self-quarantining under the EFMLEA, but it is different when defining which employees an employer may exempt from leave under the FFCRA, which is much broader. Another important difference is that employers are not required to follow regular FMLA notice requirements, such as notice of eligibility, rights and responsibilities, and written designations, for EFMLEA leave requests.
Does the integrated employer test apply when calculating coverage under both the EFMLEA and EPSLA or just the EFMLEA?
Probably both. The DOL’s previous guidance suggested that the FMLA integrated employer test (https://www.dol.gov/whd/opinion/FMLA/prior2002/FMLA-111.htm) was only applicable to EFMLEA and not the EPSLA. The regulations, however, make no apparent distinction. Instead, the regulations provide that “any private entity or individual who employs fewer than 500 employees must provide paid sick leave and expanded family and medical leave” and that “to determine the number of employees employed, all common employees of joint employers or all employees of integrated employers must be counted together.” Therefore, an employer should apply the integrated employer test to determine whether interrelated but legally separate entities must count their combined total employees in calculating whether they are a covered employer under the FFCRA.
What is required for the “small business” exemption?
An employer with fewer than 50 employees is exempt from providing paid sick leave under the EPSLA and expanded family and medical leave under the EFMLEA to an employee when the imposition of such requirements would “jeopardize the viability of the business as a going concern.” A small employer satisfies this requirement if an authorized officer of the employer has determined that:
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.
Crucially, the Regulations affirm that the decision of whether to apply the exemption is left to the discretion of the employer. To elect the small business exemption, the employer must document that a determination has been made pursuant to the criteria set forth above and simply retain the records in its files.
Note that regardless of whether the small employer chooses to exempt one or even all of its employees, it must still comply with the FFCRA’s notice requirement.
What are the requirements of a “federal, state, or local quarantine or isolation order” that trigger EPSLA leave?
The definition of “a Quarantine or Isolation Order” that triggers the FFCRA’s leave requirements is a “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.” This definition is very expansive and includes when a Federal, State, or local government authority has merely “advised” individuals to shelter in place, stay at home, isolate, or quarantine. The key question for determining if an order triggers FFCRA leave appears to be whether compliance with the order prevents an employee from working or teleworking.
Additionally, an employee is only entitled to leave under the FFCRA if one of the qualifying reasons, such as a quarantine or isolation order, prevents him or her from working, including teleworking. The qualifying reason has to be the “but for” causation of the inability to telework. So, for example, an employee that cannot telework (i.e., due to extenuating circumstances that prohibit the employee from performing that work) who is under an order to stay in his home would qualify for leave if their employer is otherwise open and has work for them to do. If the employer, however, is shut down by a similar order, the employee is not entitled to paid sick leave regardless of whether the employee is also subject to a quarantine order.
When can employers require employees to telework rather than take paid leave?
An employee is able to telework, and therefore may not take paid sick leave, if (a) the 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 being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work, such as severe COVID-19 symptoms. Simply being tested as positive for COVID-19 does not automatically qualify an employee for paid sick leave if they are still able to telework.
Is there a limitation on an employee’s ability to claim paid sick leave to take care of another with COVID-19?
Yes. To be eligible for paid sick leave to care for another, “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.”
Can both parents take FFCRA leave to care for a child?
No. An employee is generally not eligible to take paid sick leave or expanded family and medical leave for child care 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. If their employers agree, however, both parents could take alternating intermittent leave.