On April 6, 2020, the United States Department of Labor (“DOL”) published regulations regarding the paid leave programs previously established in the Families First Coronavirus Response Act (“FFCRA”) and later revised in the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The DOL regulations provide important context and insight for how these paid leave programs operate. The regulations are “temporary” and do not affect the FMLA after December 31, 2020.
The FFCRA created two paid leave programs: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). The EPSLA provides up to 80 hours of paid sick leave while the EFMLEA provides up to 12 weeks of expanded family and medical leave under the FMLA, with the first 10 days unpaid and any subsequent leave paid. Both programs apply only to employers with fewer than 500 employees.
Below we discuss the DOL’s new regulations and explain how they impact the EPSLA and the EFMLEA.
COVERAGE
Covered Employer
The FFCRA covers employers who have fewer than 500 employees within the United States at the time an employee’s leave is to be taken. The employer may count the following individuals as employees under the FFCRA:
- All full-time and part-time employees;
- Employees on leave;
- Temporary employees; and
- Day laborers
Example: If an employer has 450 employees on April 20, 2020, and an employee needs to take paid sick leave or expanded family and medical leave starting on April 20, then the employer must provide such leave. However, if the employer hires 50 more employees between April 21, 2020, and April 30, 2020, such that there are now 500 employees on April 30, 2020, then the employer is no longer required to provide paid sick leave or expanded family and medical leave to an employee who requests such leave on April 30, 2020.
Employers may not count independent contractors or workers who have been laid off or furloughed and have not been subsequently re-employed.
A corporation (including its separate establishments or divisions) is considered a single employer for the purpose of determining the number of employees employed. If a corporation has an ownership interest in another corporation, the two corporations are separate employers. unless they are joint employers with respect to certain employees.
Joint employers and integrated employers must combine employees in determining the number of employees they employ. The DOL stated that the Fair Labor Standards Act’s test for joint-employer status applies in determining who is a joint employer for purposes of coverage, and the FMLA’s test for integrated-employer status applies in determining who is an integrated employer.[1]
Small Business Exemption
Small employers with fewer than 50 employees may qualify for an exemption to the paid sick leave programs in the FFCRA. We previously wrote on the small business exemption from the FFCRA that was advanced by the DOL through its FAQs. The DOL regulations additionally require that if the employer elects the small business exemption, it must document how the determination was made and retain those records in its files. The employer does not need to send those records to the DOL.
Regardless of whether the employer elects the small business exemption, the employer must post a notice that explains the FFCRA’s paid leave provisions and provide information concerning the procedures for filing complaints of violations of the FFCRA with the DOL’s Wage and Hour Division, as discussed above.
DOCUMENTATION REQUIRED FROM EMPLOYEE
An employee who works for a covered employer and needs to take paid sick leave or expanded family and medical leave benefits must provide the following documentation to the employer:
- The employee’s name;
- The date(s) for which leave is requested;
- The COVID-19 qualifying reason for leave; and
- An oral or written statement representing that the employee is unable to work or telework because of COVID-19 qualifying reason. An employee is able to telework if: (a) his or her employer has work for the employee; (b) the employer permits the employee to work from the employee’s location; and (c) there are no extenuating circumstances that prevent the employee from performing that work.
The employee must provide additional documentation for paid sick leave, depending on the COVID-19 qualifying reason. Those requirements are discussed in the table below.
The employer is also not required to provide leave if the materials provided by the employee are insufficient to support the applicable tax credit. The Internal Revenue Service (“IRS”) has provided guidance through its Frequently Asked Questions that address what materials may be sufficient for employers to claim tax credit.
LIMITATION ON LEAVE: QUALIFYING REASON MUST BE “BUT FOR” REASON
Neither the Emergency Paid Sick Leave nor the Expanded Family and Medical Leave are available unless the qualifying reason for the leave is the “but for” reason for the leave. The DOL explains that a “quarantine or isolation order” includes 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.
An employee may take paid sick leave for this reason only if, but for being subject to the order, he or she would be able to perform work or telework. An employee may not take paid sick leave for this reason if the employer does not have work for the employee as a result of the order or other circumstances.
Example of ineligible employee: 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 or she were not required to stay at home. As such, he or she may not take paid sick leave because his or her inability to work is not due to the need to comply with the stay-at-home order, but rather due to the closure of his or her place of employment.
Example of eligible employee: 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. This employee would not, however, 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 other extenuating circumstances due to the quarantine or isolation order.
The DOL applies this same reasoning to all qualifying reasons for Emergency Paid Sick Leave and Expanded Family and Medical Leave. Where the employer does not have work for the employee, these paid leaves are not available, but the employee may instead be eligible for unemployment insurance benefits.
PAID SICK LEAVE
Amount of Paid Sick Leave Available Under the EPSLA
Under the EPSLA, an employee is considered a full-time employee if he or she is normally scheduled to work at least 40 hours each workweek. A full-time employee is entitled up to 80 hours of paid sick leave.
An employee is considered a part-time employee if he or she does not satisfy the 40-hour workweek requirement. If the part-time employee has a regular weekly schedule, the employee is entitled paid sick leave for up to the number of hours that the employee is regularly scheduled to work over two workweeks. The DOL regulations outline the calculation process to adduce eligibility.
Restrictions on Paid Sick Leave
The EPSLA provides six qualifying reasons under which employers must provide paid sick leave to their employees. The DOL regulations expand on these qualifying reasons and list additional documentation that the employer should require from an employee, depending on the qualified reason.
EPSLA Reason for COVID-19 Qualifying Leave | DOL Regulation Interpreting qualifying circumstances | Additional Documentation Required in Support of Leave |
1. Quarantine or Isolation Order The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19. | See above regarding limitation on leave.
| The employee must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject. |
2. Advice of Health Care Provider The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. | An employee may take paid sick leave for this reason only if: (1) a health care provider advises the employee to self-quarantine based on a belief that the employee has or may have COVID-19, or the employee is particularly vulnerable to COVID-19; and (2) upon following this advice, the employee is unable to work or telework. An employee who is self-quarantining for this reason and able to telework may not take paid sick leave if: (1) his or her employer has work for the employee to perform; (2) the employer allows the employee to work from the location where the employee is self-quarantining; and (3) there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work. Also, see above regarding limitation on leave. | The employee must provide the name of the healthcare provider who advised him or her to self-quarantine for COVID-19-related reasons. |
3. Seeking Diagnosis for COVID-19 Symptoms The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis. | Symptoms the DOL recognizes include fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention. The paid sick leave taken for this reason must be limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis, such as time spent making, waiting for, or attending an appointment for a test for COVID-19. The employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis. The employee also may not take paid sick leave if he or she is waiting for the results of a test and is able to telework. Also, see above regarding limitation on leave. | The DOL did not address additional documentation required for this leave. |
4. Caring for Affected Individual The employee is caring for an individual who is subject to an order as described in paragraph (1) or has been advised as described in paragraph (2). | Although not stated in the statute, the DOL specified that there must be a personal relationship with the individual, such as 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 that person if he or she self-quarantined or was quarantined Also, see above regarding limitation on leave. | The employee 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. |
5. Caring for a Son or Daughter The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions. | A “place of care” means a physical location in which care is provided for the employee’s child while the employee works for the employer, such as day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs. This location does not have to be dedicated to such care. A “child care provider” means a provider who receives compensation for providing child care services on a regular basis, such as a center-based child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated, or registered under state law and satisfies state and local requirements. An employee may take paid sick leave if he or she is able to perform work but for the need to care for his or her son or daughter. The DOL has adopted the FMLA definition of “son or daughter,” which is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older who is incapable of self-care because of a mental or physical disability. The employee needs to be, and actually is, caring for his or her child. If there is another suitable individual available to provide the care the employee’s child needs, then the employee may not take paid sick leave. Suitable individuals include the child’s co-parent, co-guardian, or the usual childcare provider. Also, see above regarding limitation on leave. | The employee must provide: (1) the name of the child being cared 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. In order for the employer to claim a tax credit for leave granted to provide care for a child older than 14 years of age during daylight hours, the employee must also include a statement explaining the special circumstances that require the employee to provide care to that child. |
6. Experiencing Similar Health Conditions 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. | The DOL did not address paid sick leave for this reason. Presumably, the limitation on leave, discussed above, would apply in this situation. | The DOL did not address additional documentation needed for this leave. |
EXPANDED FAMILY AND MEDICAL LEAVE
The DOL explained that the leave authorized by the EFMLEA is the same as the fifth reason discussed above authorized by the EPSLA—that is, leave is required to care for a child because the child’s school or place of care is closed, or the childcare provider is unavailable, due to COVID-19 related reasons. Such an employee may be eligible to take leave under both the EPSLA and the EFMLEA. If so, the benefits provided by the EPSLA run concurrently with those provided under the EFMLEA. The limitation on leave, described above also applies to EFMLEA.
Between April 2, 2020, to December 31, 2020, an eligible employee may take up to 12 workweeks of expanded family and medical leave (even if that period spans two FMLA leave 12-month periods). The first two workweeks of EFMLEA leave may be paid under the EPSLA. The subsequent 10 workweeks are paid under the EFMLEA. If the employee has exhausted his or her 12 workweek FMLA leave entitlement prior to his or her need for COVID-19-related leave, the employee is not entitled to additional leave under the EFMLEA; however, the employee may still be entitled to paid sick leave under the EPSLA (if the employee has not exhausted such leave). If the employee takes EFMLEA leave after exhausting all or part of his or her paid sick leave under the EPSLA, all or part of the employee’s first 10 workdays (or first two workweeks) of his or her expanded family and medical leave may be unpaid. The employee may choose to substitute earned or accrued paid leave provided by the employer during this period.
INTERMITTENT LEAVE
The employer and employee may agree to the employee taking intermittent paid sick leave or expanded family and medical leave if the employee is teleworking. However, if the employee reports to an employer’s worksite, he or she is prohibited from taking intermittent paid sick leave or expanded family and medical leave, unless the leave is related to the employee’s need to care for his or her son or daughter if the child’s school or place of care is closed, or the child care provider is unavailable, due to COVID-19-related reasons. If the employer and employee agrees to the employee taking intermittent leave, only the amount of leave actually taken may be counted toward the employee’s leave entitlements.
EMPLOYEE NOTICE OF NEED FOR LEAVE
The DOL does not require advance notice for any paid sick leave or expanded family and medical leave, except if the reason for the leave is to care for a child whose school or place of care is closed or childcare provider is unavailable due to COVID-19 related reasons. When an employee requests leave for such reasons, and if the need for leave is foreseeable, the employee must provide the employer with notice of this need for paid sick leave or expanded family and medical leave as soon as practicable.
Otherwise, the employer may require an employee to follow reasonable notice procedures after the first full or partial day that the employee takes paid sick leave or expanded family and medical leave. The DOL stated that it is reasonable for employers to require oral notice and “sufficient information” to determine if the leave qualifies under the EPSLA or the EFMLEA. However, the employer may not require the notice to include documentation beyond what is allowable.
EMPLOYER RECORDKEEPING REQUIREMENTS
All documentation provided in support of paid sick leave or expanded family and medical leave must be retained for four years, regardless of whether the leave was granted or denied. If the employee had only provided an oral statement in support of a request for leave, the employer must document that oral request and retain that document in its records for four years.
In order for an employer to claim tax credits for providing leave under the FFCRA, the DOL advised that the employer maintain the following records for four years:
- Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that is eligible for the credit, including records of work, telework, and paid sick leave and expanded family and medical leave;
- Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
- Copies of any completed IRS Forms 7200 (Advance of Employer Credits Due to COVID-19);
- Copies of the completed IRS Forms 941 (Employer’s Quarterly Federal Tax Return); and
- Other documents that the IRS requires through its applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit. See the IRS Frequently Asked Questions.
EMPLOYER POSTING OF FFCRA NOTICE
All employers covered by the FFCRA’s paid leave provisions are required to post and keep posted on its premises and in conspicuous places a notice that explains the FFCRA’s paid leave provisions and provides information concerning the procedures for filing complaints of violations of the FFCRA with the Wage and Hour Division. The employer may satisfy this requirement by emailing or direct mailing employees or posting this notice on an employee information internal or external website.
The employer may use the DOL’s model notice or use another format, as long as all of the relevant information is contained in that notice. The DOL does not require translation or provision of the notice in languages other than English. For employers who are covered by the EFMLEA but are not covered by other provisions of the FMLA, posting this notice as discussed satisfies their FMLA general notice obligation.
OTHER PROVISIONS
The regulations also address health care coverage, multiemployer plans, and job protection/return to work issues. For the most part (but not entirely), these provisions track existing FMLA rules.
We will continue to monitor the situation as employers start to implement practices pursuant to these new laws. Please continue to check our blog for employment-related developments and our Coronavirus (COVID-19) Resource Center for continued advice on the numerous issues that we are following.
[1] See 29 CFR § 791.2 (joint employer test); 29 CFR § 825.104(c)(2) (integrated employer test).