Updated: Temporary FFCRA Regulations Clarify Leave, Small Business ExemptionUpdated September 14, 2020 – Alerts
On April 1, 2020, the U.S. Department of Labor (DOL) published temporary regulations under the Families First Coronavirus Response Act (FFCRA) that are intended to clarify the scope and application of leaves under the FFCRA and which small businesses are eligible for an exemption. Like the FFCRA, these regulations will be in effect from April 1, 2020 to December 31, 2020. On April 10, 2020, the DOL published corrections to the temporary regulations. You can find the full regulations here.
UPDATE: [A judge in the U.S. District Court for the Southern District of New York ruled on Aug. 3, 2020 that certain leave provisions of the FFCRA are too restrictive. The decision may affect worker eligibility for paid sick leave, expanded family and medical leave, and intermittent family and sick leave. The geographic scope of that ruling and whether it gets appealed are unclear at this time.
For details on the ruling, read this detailed client alert: "Federal Court Strikes Down Provisions of Department of Labor Rule on Federal Paid Leave." For information on other FFCRA-related issues, see our Coronavirus Resources Page.
In response to that federal court ruling, the DOL issued “revisions and clarifications” to these regulations in September 2020, which are discussed below.]
The FFCRA created two types of leave to help workers effected by COVID-19 and the resulting economic displacement. “The Emergency Paid Sick Leave Act” (EPSLA) provides eligible employees up to two weeks of paid sick leave. “The Emergency Family and Medical Leave Expansion Act” (EFMLEA) amends the Family and Medical Leave Act (FMLA) to provide eligible employees up to 12 weeks of family and medical leave, ten of which are paid. Both acts delineate specified reasons related to COVID-19 for which the leaves may be taken.
The FFCRA covers private employers with fewer than 500 employees and certain public employers. Employers with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave due to school closings or the unavailability of child care if the leave payments would “jeopardize the viability of the business as a going concern.”
Covered private employers can be reimbursed through tax credits for amounts paid to employees for sick leave wages and qualifying family and medical leave wages and for allocable costs to maintain health care coverage for employees on leave. Further information on tax credits is available here.
Most of the definitions in the FFCRA are borrowed from other federal laws. Some definitions, however, require further analysis. First, the EFMLEA makes family and medical leave available for employees who need “to care for [a] son or daughter under 18 years of age” if their school is closed or child care is unavailable due to COVID-19. For purposes of expanded family and medical leave, the regulations adopt the definition from the FMLA, which includes children 18 or older and incapable of self-care because of a mental or physical disability. The same definition applies to the EPSLA, which includes among the reasons to take paid sick leave the need to care for a son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19. So the benefits can apply to employees caring for offspring over 18 in certain circumstances.
Another definition that merits discussion is “telework.” The regulations define “telework” broadly to mean work the employer lets the employee perform at home or at a location other than the employee’s normal workplace. Employers are not required to pay employees for unreported hours while teleworking unless the employer knew or should have known the employee was working. In addition, the presumption that employees are working continuously throughout the workday does not apply to telework for COVID-19-related reasons. The DOL believes that applying that rule in this circumstance would discourage the flexibility that employees need to be able to perform their work at unconventional times.
Paid Leave Entitlements
Paid Sick Leave — Reasons for Leave
Paid Sick Leave under EPSLA is available in six situations. First, paid sick leave is available if employees are unable to work because they are subject to a federal, state, or local COVID-19 quarantine or isolation order. The regulations clarify that this qualification applies to employees who cannot work or telework due to shelter-in-place orders. However, leave is only available if the employer had work for the employee to do. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to the pandemic, a cashier of the business who is subject to a stay-at-home order would not be able to take paid sick leave. That is because the lack of work is due to the closure, not the cashier’s inability to leave home. [Update: In a decision filed on August 3, 2020, a federal district court judge in New York ruled that the text of the Act does not support this limitation. The geographic scope of that ruling and whether it gets appealed are unclear at this time. In September 2020, the DOL issued revised regulations reaffirming its position that the leave is only available to employees who otherwise had work available.]
The regulations also emphasize that employees subject to shelter-in-place orders may not take paid sick leave if they are able to telework, provided that there is work for the employee to do, the employer allows the employee to telework and there are no extenuating circumstances that prevent the employee from performing that work (such as a COVID-19 related power outage).
The second reason for paid sick leave applies when employees are unable to work because they have been advised by a health care provider to self-quarantine for a reason related to COVID-19 (even if they are not displaying symptoms at the time). The advice 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. Also, the self-quarantining must prevent the employee from working, even remotely.
The third reason for paid sick leave applies when an employee is experiencing symptoms of COVID-19 (as identified by the U.S. Centers for Disease Control and Prevention) and is seeking a medical diagnosis. Leave taken for this reason is limited to the time employees are unable to work because they are taking affirmative steps to obtain a medical diagnosis. This includes time spent making, waiting for or attending an appointment for a COVID-19 test. It also includes employees who seek a test, are told that they do not meet the criteria for testing, but are advised to self-quarantine, if that prevents the employee from working or teleworking and work would otherwise be available. It does not include employees who are self-quarantining without seeking a medical diagnosis. Nor does it include employees who are waiting for test results, but are able to and allowed to telework (unless the COVID-19 symptoms prevent them from doing so).
The fourth reason for paid sick leave applies where employees are unable to work because they need to care for someone 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 reason only applies if, but for the need to care for an individual, the employee would be able to work. It would not apply if the employer does not have work for the employee. The regulations also emphasize that the need to care for the individual must be genuine. The individual being cared for must be an immediate family member, roommate or someone similar with whom the employee has a relationship that creates an expectation that the employee would provide care. The person being cared for must also: (a) be subject to a Federal, State, or local quarantine or isolation order; 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.
The fifth reason for paid sick leave applies when an employee is unable to work because they need to care for a son or daughter if: (a) the child’s school or place of care has closed; or (b) the child care provider is unavailable, for COVID-19 related reasons. As before, the employee must be able to work but for the need to care for their son or daughter. So the leave would not apply if the employer had no work for the employee. Also, the paid sick leave is only available if the employee needs to care, and actually is caring, for his or her child. It is not available if someone else, such as a co-parent, guardian or child care provider, is available to provide the care.
The sixth reason for paid sick leave applies if the employee is unable to work because they are 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. No such conditions have yet been identified.
Paid Sick Leave — Calculating the Amount of Leave
Regarding the amount of paid sick leave available under EPSLA, a full-time employee is entitled to 80 hours of paid sick leave, and a part-time employee is entitled to the “number of hours that such employee works, on average, over a 2-week period.” If the part-time employee’s schedule varies from week to week, according to the EPSLA, employers must first calculate the average number of hours the employee was scheduled per day over the six months immediately prior to the date the employee begins taking paid sick leave. To clear up sloppy drafting in the EPSLA, the DOL explains in the regulations that, once the employer calculates the daily average, it multiplies that number by 14 to get the two-week average. In calculating the amount the employee with an irregular schedule worked per day, the employer must look at calendar days, not just workdays. If you took the amount the employee worked per workday and multiplied it by 14, you would overstate the employee’s two-week earnings (unless the employee worked every day)
The EPSLA does not define the terms “full-time” or “part-time” employee. The regulations define a full-time employee as one who is normally scheduled to work at least 40 hours per workweek. Those who work less than 40 hours per workweek would be part-time employees. For employees whose schedule varies, the DOL again instructs employers to use a six-month average using the period immediately before the leave begins. If the employee has worked less than six months, one would calculate the average over the entire period of employment.
The amount of paid sick leave an employer is required to pay is capped at $511 per day and $5,110 in total if the employee is taking the leave for himself or herself. If the employee is caring for someone else, the leave receives two-thirds pay, subject to a cap of $200 per day of leave and $2,000 in total.
Extended Family Leave
As noted above, “The Emergency Family and Medical Leave Expansion Act” (EFMLEA) amends the FMLA to provide eligible employees up to 12 workweeks of expanded family and medical leave. The leave is available for employees who need the time off to care for a child whose school or place of care is closed, or whose child care provider is unavailable, for a COVID-19 related reason.
Any leave taken pursuant to EFMLEA counts against the 12 workweeks of FMLA leave to which employees are otherwise entitled. So if an employee has used part of their 12 weeks of FMLA, they would only be entitled to the remainder for extended family leave.
This expanded family and medical leave is unpaid for the first two weeks, though the paid sick leave discussed above is available for that period. The regulations emphasize that these two leaves are supposed to work together so that eligible employees have a continuous stream of income while caring for children whose school or child care is not available.
For each day of extended family leave after the first two weeks, the employer must pay the employee two-thirds of their regular rate times the number of hours the employee would normally be scheduled to work that day, up to a maximum of $200 per day or $10,000 in total for the additional ten workweeks. Again, the regulations address situations where employees’ schedules vary from week to week. Again, they instruct employers to calculate the average number of hours the employee worked per day over the six months ending on the date the leave begins.
For employees with varying schedules who have worked less than six months, the EFMLEA states that the amount paid is based on “the reasonable expectation of the employee at time of hiring.” In an ideal world, the expectations of how many hours the employee would work on an average workday would be documented. The documentation need not specify a workday average. It could also specify how much an employee would work per week, pay period, month, year or any other period from which you could extrapolate a daily average. Absent such an agreement, the DOL instructs employers to look at the actual average number of hours the employee was scheduled to work each workday over the period of employment. (Again, this is for employees who have worked less than six months.)
Normally, employees may use available vacation time or other accrued paid leave to supplement their earnings while on FMLA leave. However, FMLA leave is typically unpaid, while EFMLEA leave after the first two weeks is paid (albeit at two-thirds of regular earnings, subject to a cap). As a result, the DOL says that accrued vacation or other available paid leave cannot be used to supplement an employee’s earnings (e.g. to make up for the missing one-third) unless the employer and employee agree and applicable law allows.
Additional Eligibility Issues
The EFMLEA and EPSLA allow employers to exclude certain otherwise-eligible employees from coverage under the acts. For purposes of the EPSLA, employees are eligible for paid leave immediately upon being hired. The EFMLEA requires that employees be employed for 30 days before taking expanded family leave (although there are exceptions involving employees who are laid off and rehired and those hired through placement agencies).
The EFMLEA and EPSLA also allow employers to exclude employees who are health care providers or emergency responders.
The original definition of “health care providers” was very broad, including almost everyone employed at a health care facility. In a decision filed on August 3, 2020, a federal district court judge in New York ruled that this definition goes beyond what is justified by the text of the Act. In September 2020, the DOL issued revised regulations narrowing the definition. Under the revised regulations, a “health care provider” is defined first to include employees who are health care providers under the FMLA (as defined in 29 CFR 825.102 and 825.125), that is:
- A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices; or
- Any other person determined by the Secretary [of Labor] to be capable of providing health care services.
This latter category (i.e., others “capable of providing health care services”) is limited to:
- Podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the state and performing within the scope of their practice as defined under state law;
- Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under state law and who are performing within the scope of their practice as defined under state law;
- Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts...
- Any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
- A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.
The revised regulations also specify that the definition of “health care provider” includes other employees who are employed to provide diagnostic services, preventive services, treatment services or other services that are integrated with and necessary to the provision of patient care. This includes nurses, nurse assistants, medical technicians and any other persons providing health care services under the supervision, order, or direction of, or providing direct assistance to, a person who is a health care provider. In addition, the definition includes employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary for diagnosis and treatment. Contrary to the original regulatory definition, employees who do not provide health care services are not health care providers even if their work can affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.
“Emergency responders” include anyone necessary to provide transport, care, healthcare, comfort and nutrition to COVID-19 patients or others needed for the response to COVID-19. It includes military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, EMTs, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. As with “health care providers,” the highest official of a state, district or territory can add to the list anyone he or she determines is necessary for the response to COVID-19.
Nothing in the acts prevents such employees from taking other accrued leaves or time off pursuant to their employers’ policies. In addition, these individuals are not automatically excluded from taking leave under EPSLA or EFMLEA. They are only excluded if their employer affirmatively elects to do so.
As noted above, the EPSLA and EFMLEA apply to private employers with fewer than 500 employees. That determination is made at the time an employee would take leave. So if an employee requests leave on a date when the employer employs 450 employees, the employer is subject to the acts. If the employer then goes out and hires 75 new employees, an employee who requests leave after those hires would not be entitled to take leave.
In counting how many employees an employer has, include full- and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another entity and day laborers supplied by a temporary placement agency. Do not count independent contractors or employees who have been laid off or furloughed without being reemployed. Also exclude employees working outside the U.S. The test for determining joint employment is the same used under the Fair Labor Standards Act (FLSA).
State or local law mirroring the FFCRA may apply to larger employers.
Both acts also give the Secretary of Labor authority to exempt employers with fewer than 50 employees from having to provide paid sick leave or expanded family and medical leave to employees to care for children whose school or child care is closed, if doing so would jeopardize the viability of the business as a going concern. The regulations explain that this exception applies when:
- 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;
- 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;
- 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 the labor or services are needed for the small employer to operate at a minimal capacity.
Employers using this exemption should not send supporting materials or documentation to the DOL, but rather should retain such records for their own files.
In explaining which public employers must comply with the Acts, the DOL borrows the definition of “Public Agency” from the FLSA. It includes the federal government, federal government agencies (e.g. the Postal Service), state governments (including political subdivisions of states) and interstate government agencies, regardless of the number of employees.
Both paid sick leave and expanded family leave can be taken on an intermittent basis. On this issue, the acts follow regulations promulgated under the FMLA, with some modifications.
The regulations explain that intermittent leave must be agreed to between the employer and employee. They do not require that the agreement be in writing, but it would help prevent future disputes to document it. The employer and employee must not only agree to the use of intermittent leave, they must also agree to the increments in which it can be taken.
For employees who telework, there is no limit on the increments to which an employer and employee may agree. This is intended to provide as much flexibility as possible. The regulations also note that teleworking employees present no risk of transmitting the coronavirus to co-workers.
Employees who report to the workplace, however, can pose such a risk. Therefore, unless they are teleworking, employees who are taking paid sick leave cannot take it intermittently if they are taking the leave because they are:
- subject to a federal, state or local quarantine or isolation order related to COVID-19;
- have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- are experiencing symptoms of COVID-19 and are taking leave to obtain a medical diagnosis;
- are 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;
- are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Once such an employee begins taking paid sick leave, they must continue the leave until it is exhausted or they no longer have the qualifying reason for taking it. [Update: In a decision filed on August 3, 2020, a federal district court judge in New York decided that the intermittent leave rules exceeded what the text of the Act allowed. Specifically, the court ruled that, in situations where there is not a risk of transmission of the virus (such as an employee taking leave because their child’s school is closed), employers do not have unfettered authority to deny intermittent leave. The geographic scope of that ruling and whether it gets appealed are unclear at this time. The September 2020 revised regulations reaffirm the DOL’s position that intermittent leave requires employer approval.]
The DOL has issued a notice (available here) that all covered employers are required to post in a conspicuous place where employees or applicants may view it. Employers can also distribute the notice by e-mail or regular mail or load it on a website where employees receive information. They may also provide the information in the notice to employees in a different format. A Spanish language version is also available. Unlike standard FMLA leave, employers need not respond to employee requests with notices specifying their FMLA rights.
Employee Notice of the Need for Leave
When an employee is taking paid sick leave or expanded family leave to care for a son or daughter whose school is closed or whose child care is unavailable due to COVID-19, an employer may require the employee to provide reasonable notice of the need for leave as soon as practicable after the first workday is missed. The employer can require that the notice include the employee’s name, the dates for which leave is requested, the qualifying reason for the leave and a statement that the employee is unable to work (or telework) because of the COVID-19 qualifying reason.
An employee taking paid sick leave because of a quarantine or isolation order must also provide the name of the government entity that issued the order. An employee taking paid sick leave because a health care provider has advised him or her to self-quarantine must name the health care provider. An employee taking paid sick leave or expanded family leave to care for a child must provide the child’s name, the name of the school or child care provider that is unavailable due to COVID-19 and a written representation that no one else is available to care for the child. If an employee is taking FMLA for the employee’s own serious health condition related to COVID-19, normal FMLA certification requirements apply.
Failure to provide appropriate notice does not necessarily justify denial of the request. Instead, the employer should point out the deficiency and give the employee a chance to correct it.
Continued Health Care Coverage
Employees who take leave under either of the acts are entitled to continue their coverage under the employer’s group health plan on the same conditions as if they had not taken the leave. The employees who take the leave remain responsible for paying the same portion of the plan premium as they paid before.
Employees Returning from Leave
In most situations, an employee returning after taking paid leave under the EPSLA or EFMLEA will be entitled to return to the same or an equivalent position to the same extent as an employee returning from FMLA leave. Employees who would have been laid off for reasons unrelated to their taking leave are not protected. The burden will be on the employer to show that the employee would have been laid off regardless of taking the leave. If the employer subsequently recalls some laid off employees and does not recall the employee who took leave, it has the same burden of showing that the employee would not have been recalled if he or she never took the leave.
These restoration requirements do not apply to employers with fewer than 25 employees if they can show that:
- The employee took leave to care for his or her son or daughter whose school or child care was closed or unavailable;
- The employee’s position no longer exists due to economic or operating conditions that:
- affect employment and
- are caused by a public health emergency (i.e., due to COVID-19 related reasons) during the employee’s leave;
- The employer made reasonable efforts to restore the employee to the same or an equivalent position;
- If the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts for a period of time to contact the employee if an equivalent position becomes available. The period of time is one year beginning on the date the leave ends or the date 12 weeks after the leave began, whichever is earlier.
In addition, the FMLA provisions regarding restoration of “key” employees apply to leave taken under the EFMLEA.
Employers must keep relevant documentation for four years, even if the leave was denied. If the employee explained the need for leave orally, the employer must document that information. If an employer denies leave pursuant to the small business exemption, it must document an officer’s determination the criteria were met.
Employers are prohibited from discharging, disciplining, or discriminating against employees because they took or applied for protected leave. In addition, employers who fail to provide paid sick leave can be liable for failing to pay the minimum wage. Employees may bring such claims individually or on a class-wide basis to recover such unpaid wages, an additional equal amount as liquidated damages, and attorneys’ fees. Repeated or willful violations subject the employer to additional penalties and damages. For purposes of the EFMLEA, employers are subject to normal FMLA enforcement procedures. However, if an employer had fewer than 50 employees during each of 20 or more calendar workweeks in the current or preceding calendar year, the employee may not bring a private action for violation of EFMLEA.
Effect of Other Laws, Employer Practices, Agreements
Paid sick leave and expanded family leave rights are in addition to any other right or benefit to which the employee is entitled. An employer may not deny an employee paid sick leave or expanded family leave because the employee has already taken another type of leave. In addition, no employer may require, coerce or unduly influence an employee to use another source of paid leave before taking expanded family leave.
For more information about this alert, please contact Jeffrey D. Polsky at [email protected] or 415.364.5563 or any member of the firm’s national Labor & Employment Department.