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

On April 1, 2020, the Department of Labor (“DOL”) issued temporary regulations 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 that are set forth at 29 C.F.R. §§ 826.10-826.160.

Below is a summary of the DOL’s comments with referenced page number in Finala Rule as well as the relevant Code of Federal Regulations (“C.F.R.”) citation. Note that the actual regulations begin on page 83 of the Final Rule:

• Family and Medical Leave Act (“FMLA”) definitions prevail unless stated otherwise: “As a general matter, the FMLA definitions apply to the EFMLEA unless specific definitions were included in the EFMLEA.” (p.11; 29 C.F.R. § 826.10)
• Telework interpretation for FLSA hours worked: “As a result, the Department has determined that an employer allowing such flexibility during the COVID-19 pandemic shall not be required to count as hours worked all time between the first and last principal activity performed by an employee teleworking for COVID-19 related reasons as hours worked.” (p. 13; 29 C.F.R. § 826.10)
• Shelter in Place and Stay at Home Orders considered “quarantine or isolation order” if employee is unable to work or telework: “Quarantine or isolation orders include a broad range of governmental orders, including 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)
• 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))

• EPSL under Reason #1 could apply if an employee is unable to “telework” because of extenuating circumstances that prevent such telework, such as a power outage during an applicable isolation or quarantine order: “[A]n employee subject to a quarantine or isolation order 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 being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work. For example, if a law firm permits its lawyers to work from home, a lawyer would not be prevented from working by a stay-at-home order, and thus may not take paid sick leave as a result of being subject to that order. In this circumstance, the lawyer is able to telework even if she is required to use her own computer instead of her employer’s computer. But, she would not be able to telework in the event of a power outage or similar extenuating circumstance and would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.” (p. 15; 29 C.F.R. § 826.20 subd. (a)(2))
• EPSL under Reason #2 for an employee who cannot work or telework due to self-quarantine because of health care provider advice is further defined to mean: “the advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. And, self-quarantining must prevent the employee from working.” (p. 15; 29 C.F.R. § 826.20 subd. (a)(3))
• EPSL under Reason #3 for an employee who cannot work or telework due to experiencing symptoms of COVID-19 and seeking a medical diagnosis is “limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis. Thus, 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.” COVID-19 symptoms are also described as “fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention (CDC).” This leave also does not apply if the employee is able to telework during this process. (p. 16; 29 C.F.R. § 826.20 subd. (a)(4))
• EPSL under Reason #4 for an employee who cannot work or telework in order to care for an “individual” subject to reasons #1 and #2 is not unlimited and is qualified by the employee’s relationship to the individual for whom care is being provided. As noted by the DOL this 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.” (p. 17; 29 C.F.R. § 826.20 subd. (a)(5), emphasis added)
• EPSL Reason #5 is for an employee who cannot work or telework because of the need to care for or 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))
• FMLA public health emergency leave is also for an employee who cannot work or telework because of the need to care for a son or daughter who is not in school or childcare due to a COVID-19 related reason and will be interpreted the same as EPSL Reason #5. (p. 18; 29 C.F.R. § 826.20 subd. (b))
• “Son or daughter” definition will be 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).
• Exempt employee’s use of intermittent leave under EPSL or FMLA public health emergency leave will not violate the salary basis test. (p. 20; 29 C.F.R. § 826.20 subd. (c))
• Clarification of how to calculate EPSL paid time hours for part-time employee with varying work schedule. (pp. 20-24; 29 C.F.R. § 826.21)
• Overview of how to provide paid leave at specified levels, and the application of an “average” regular rate of pay in providing such paid leave based on a weighted average calculation of weekly regular rates of pay over the past six (6) months or the duration of the employment where the employee has worked for less than six months. (pp. 24-25, 31-33; 29 C.F.R. §§ 826.24-826.25)
• Explains application of FMLA public health emergency leave and interaction of EPSL and other leaves for the initial 10 days that are unpaid. Further, the regulations confirm that EPSL leave can run concurrently during these initial 10 days. (pp. 25, 28, 45-46; 29 C.F.R. § 826.60)
• Clarification of how to provide FMLA public health emergency leave to employees with varying work schedules. (pp. 26-28; 29 C.F.R. § 826.24)
• Because initial “10 days” language in FMLA public health emergency is not entirely compatible with existing “weeks” designation in FMLA and may cause unintended consequences for application of EPSL and FMLA public health emergency leave for employees with non-traditional work schedules, the DOL is using its regulatory authority to interpret the “10 days” unpaid period of such FMLA to be “two weeks.” (pp. 29-30; 29 C.F.R. § 826.24)
• For FMLA public health emergency leave, an employer may require that an employee use accrued leave up to an employee’s full pay for the day if the employee otherwise takes this leave as unpaid. However, if an employee uses the paid EPSL during this time, the regulations appear to limit the employer’s authority to require the use of accrued leave because it is otherwise considered a paid leave. (pp. 31, 48; 29 C.F.R. § 826.24 subd. (d))
• Clarifies that the requirement that employees must be employed for 30 calendar days prior to use of FMLA public health emergency leave means the employer had the employee “on its payroll for the thirty calendar days immediately prior to the day that the employee’s leave would begin.” In addition, an employee who is laid off on or after March 1, 2020 is also considered to have been employed for at least thirty calendar days, provided the employer rehires the employee on or before December 31, 2020 and the employee had been on the payroll for thirty or more of the sixty calendar days prior to the date the employee was laid off or terminated. (p. 34; 29 C.F.R. § 826.30 subd. (b)).
• Clarifies that “health care providers” and “emergency responders” who are exempt from FFCRA are still entitled to use any earned or accrued leaves from their employers in accordance with established employer policies. (pp. 34-35)
• Explains distinction between the use of the term “health care provider” for purposes of certification of leaves under FFCRA from the term “health care provider” who an employer may exempt from FFCRA coverage. (pp. 35-36; 29 C.F.R. § 826.30 subd. (c)(1)(i)-(ii))
• With “emergency responder”, the regulation mirrors what DOL previously provided in its Q&A’s concerning FFCRA, but provides additional guidance for how to interpret this:

“The authority for employers to exempt emergency responders is reflective of a balance struck by the FFCRA. On the one hand, the FFCRA provides for paid sick leave and expanded family and medical leave so employees will not be forced to choose between their paychecks and the individual and public health measures necessary to combat COVID-19. On the other hand, providing paid sick leave or expanded family and medical leave does not come at the expense of fully staffing the necessary functions of society, including the functions of emergency responders. The FFRCA should be read to complement—and not detract from—the work being done on the front lines to treat COVID-19 patients, prevent the spread of COVID-19, and simultaneously keep Americans safe and with access to essential services. Therefore, the Department interprets “emergency responder” broadly.

The specific parameters of the Department’s definition of “emergency responder” derive from consultation of various statutory and regulatory definitions and from the consideration of input provided to the Department by various stakeholders and public officials. The Department endeavored to include those categories of employees who (1) interact with and aid individuals with physical or mental health issues, including those who are or may be suffering from COVID-19; (2) ensure the welfare and safety of our communities and of our Nation; (3) have specialized training relevant to emergency response; and (4) provide essential services relevant to the American people’s health and wellbeing. While the Department endeavored to identify these categories of workers, it was cognizant that no list could be fully inclusive or account for the differing needs of specific communities. Therefore, the definition allows for the highest official of a state or territory to identify other categories of emergency responders, as necessary.”

The importance of this clarification is that the DOL refers to “essential employees” as employees who may not necessarily be providing COVID-19 services, but are otherwise providing essential services for the “necessary functions of society.” This may provide public agencies with a stronger argument to apply “emergency responder” to a broader array of non-safety employees providing “essential services.” (pp. 36-37; 29 C.F.R. § 826.30 subd. (c)(2))

• Clarification of employer determinations under FFCRA. (pp. 37-39; 29 C.F.R. § 826.40)
• Explanation of “small employer exemption” to only apply to “private employers with fewer than 50 employees” if they meet certain criteria. This regulation confirms that such exemption would not apply to public agencies with fewer than 50 employees, including certain small cities and special districts. (pp. 39-41; 29 C.F.R. § 826.40 subd. (b))
• Clarifies how EPSL or FMLA public health emergency leave may be taken intermittently, but that such usage is only permissible if the employee and the employer mutually agree to such intermittent use. An employee cannot otherwise unilaterally take intermittent FFCRA leave.  Such intermittent leave is also restricted where the employee is not teleworking and still reports to their worksite except for limited purposes. (p. 43-45; 29 C.F.R. § 826.50)
• Confirms that FMLA public health emergency leave is part of the existing 12 weeks of FMLA leave, and is not an additional 12 weeks on top of existing FMLA. If an employee has used up part or all of their FMLA in a current 12-month period, this will impact their ability to use FMLA public health emergency leave. (pp. 46-48; 29 C.F.R. § 826.70)
• Clarifies that for the posting of the DOL notice an employer must post it “in a conspicuous place where employees or job applicants at a worksite may view it.” In the alternative, it can email the notice to employees or post it electronically on an employee information website. For employees who are not able to access the notice in the workplace, online, or via email, the employer can directly mail it. Employers do not have to provide a Notice of Eligibility and Rights and Responsibilities for or Designation Notices for FFCRA leaves. (pp. 48-49; 29 C.F.R. § 826.80).
• Reasonable employee notice of need for FFCRA leaves may include an employer requiring an employee to provide notice as soon as is practicable after the first workday missed and to provide oral notice and required documentation consistent with the documentation required in the regulations. If an employee fails to provide proper notice procedures, the employer should give the employee the opportunity to comply before denying the request for leave. (pp. 49-50; 29 C.F.R. § 826.90).
• 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.  (pp. 50-51; 29 C.F.R. § 826.100)

• Clarifies that health care coverage must be maintained on the same terms as if the employee did not take leave for any FFCRA leave reason. This requirement appears to match the existing FMLA regulations on this subject. (pp. 51-53; 29 C.F.R. § 826.110)
• Summary of impact of FFCRA on multi-employer CBAs. (p. 53; 29 C.F.R. § 826.120)
• Clarifies that right to reinstatement following FFCRA leave is the same as the existing FMLA standard and clarifies the different rules noted in the FFCRA for employers with less than 25 employees. (pp. 54-55; 29 C.F.R. § 826.130)
• Explains 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. 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. Private employers with less than 50 employers who claim the small business exception are required to have an authorized officer document the criteria to satisfy the exception. (p. 56; 29 C.F.R. § 826.140)
• Explains prohibited acts and enforcement of FFCRA. (pp. 56-58; 29 C.F.R. §§ 826.150-826.153)
• Clarifies impact of FFCRA on existing laws, employer practices and CBA’s to note that paid leave provisions in FFCRA are in addition to existing policies and that an employee’s use of accrued leaves prior to the use of FFCRA leave shall have no impact on the ability to use FFCRA leave.  Also clarifies that such leave is prospective from April 1, 2020 and is not retroactive. (pp. 58-61; 29 C.F.R. § 826.160).