Delivering on its pledge to quickly provide regulations regarding the Families First Coronavirus Response Act (FFCRA), the Department of Labor has issued temporary regulations regarding the Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) provisions of the Act.
We have provided updates over the past couple weeks, which you can find on our website. The guidance and interpretation of the FFCRA has changed a bit over the past couple weeks. For that reason, be sure to rely upon the regulations and the most recent Q&A from the Department of Labor, as well as our recent posts on these topics. We will continue to update this site regarding the FFCRA, as well as the CARES Act, and IRS guidance.
Here are some of the highlights of the regulations.
How do the qualifying reasons work in the real world?
There six reasons for which EPSL may be used and one reason for which EFMLA may be used. An eligible employee is entitled to take EPSL if the employee is unable to work or telework because the employee:• Reason 1: is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
• Reason 2: has been advised by a health care provider to self-quarantine related to COVID-19;
• Reason 3: is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
• Reason 4: is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
• Reason 5: is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
• Reason 6: is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
An eligible employee is entitled to take EFMLA for only one reason: the employee is unable to work or telework because the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19 (EPSL Reason 5).
An employee is able to telework if her employer permits or allows her to perform work while away from her normal workplace. For an employee to be able to telework, her employer must have work for her, the employer must permit her to work remotely, and the employee must be able to perform the telework (i.e., no EFMLA or EPSL qualifying reason). The regulations state that telework may be performed during normal hours or at other times agreed by the employer and employee. Because of the desire to promote telework during the COVID-19 crisis, the DOL has decided that employers permitting telework are “not  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.” 29 CFR § 826.10(a) (citing 29 CFR § 790.6(a)). Employers must still pay employees for all hours worked.
Reason 1: Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
An eligible employee may use EPSL if subject to a quarantine or isolation order issued by a federal, state, or local government that causes the employee to be unable to work or telework even though his employer has work the employee could perform but for the order. These orders include government shelter-in-place, stay at home, isolate, and quarantine orders if the order is the reason the employee cannot work or telework. 29 CFR § 826.10(a).
The DOL explains that an employee may not take EPSL if the reason he cannot work is the closure of a business, even if the closure was precipitated by a stay-at-home order:
“This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the coffee shop closed due to its customers being required to stay at home, the reason for the cashier being unable to work would be because those customers were subject to the stay-at-home order, not because the cashier himself was subject to the order. Similarly, if the order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier himself was subject to the order.”
EPSL, therefore, is available for Reason 1 only if the order causes the employee to be unable to work or telework. 29 CFR § 826.20(a)(2). The DOL provides another useful example:
“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.”
Reason 2: Employee has been advised by a health care provider to self-quarantine related to COVID-19
This reason exists only if:
• A health care provider advises an employee to self-quarantine based on a belief that
o (a) the employee has COVID-19;
o (b) the employee may have COVID-19; or
o (c) the employee is particularly vulnerable to COVID-19; and
• Following the advice of a health care provider to self-quarantine prevents the employee from being able to work, either at the employee’s normal workplace or by telework. 29 CFR § 826.20(a)(3).
Reason 3: Employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis
Reason 3 has two requirements: (1) employee experiencing COVID-19 symptoms; and (2) employee is seeking a medical diagnosis from a health care provider. As with the other reasons, the two requirements must be the reason the employee cannot work, such as if an employee cannot work or telework because he is “taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.” 29 CFR § 826.20(a)(4).
COVID-19 symptoms include: fever, dry cough, shortness of breath, or any other COVID-19 symptoms identified by the CDC.
Reason 4: Employee is caring for an individual subject to an order described in (1) or self-quarantine described in (2)
An individual for purposes of Reason 4 is:
• an employee’s immediate family member;
• a person who regularly resides in the employee’s home; 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 were quarantined or self-quarantined.
Individual does not include persons with whom an employee has no personal relationship.
EPSL may not be taken for this reason unless the need to care for the individual causes the employee’s inability to work. If an employer does not have work for an employee, then he is not eligible for EPSL merely because he is caring for an individual. 29 CFR § 826.20(a)(5).
Reason 5: Employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19
A school is closed and a place of care is closed or unavailable if the school/place of care have been closed for a period of time whether by government order or at the decision of the individual school/place of care, or if the school/place of care is unavailable for COVID-19 related reasons.
EFMLA and EPSL are available for this reason “only if no other suitable person is available to care for the [child]” during the period of leave. 29 CFR § 826.20(a)(6); (b). Again, neither EPSL nor EFMLA are allowed if the employer does not have work for the employee.
How many hours of EPSL is an employee entitled to?
A full-time employee (defined as an employee who is normally scheduled to work 40 hours/work week) is entitled to 80 hours of EPSL.
A part-time employee is normally scheduled to work fewer than 40 hours/work week. A part-time employee with a normal weekly schedule is entitled EPSL up to the number of hours of she is normally scheduled to work over two workweeks. 29 CFR § 826.21(b)(1).
To calculate EPSL hours for a part-time employee who does not have a normal weekly schedule, employers do the following:
• If the part-time employee has been employed for at least six months, his EPSL allotment is up to 14 times the average number of hours he was scheduled to work each calendar day over the six-month period ending on the date on which he takes EPSL, including any periods of leave.
• If the part-time employee has been employed for fewer than six months, his EPSL allotment is up to 14 times the number of hours he and the employer agreed to at the time of hiring that the employee would work, on average, each calendar day. If there is no agreement, the employee is entitled to up to 14 times the average number of hours per calendar day that he was scheduled to work over the entire period of employment, including any periods of leave. 29 CFR § 826.21(b)(2).
For employers covered by the FMLA pre-EFMLA, does an employee get 12 weeks of FMLA and 12 weeks of EFMLA?
No. Iterating DOL guidance, the regulations state that EFMLA counts toward an eligible employee’s 12 weeks of FMLA leave. 29 CFR § 826.23(b). For employers covered by the FMLA, there is only one 12-week leave entitlement.
May an employee substitute EFMLA with other leave provided by the employer?
For EFMLA only, an employee may elect, or an employer may require an employee, to use other accrued leave for EFMLA if the other leave could normally be used for the school/child care closure reason under EFMLA (such as personal leave or paid time off). 29 CFR § 826.23(c).
May an employee supplement leave with other leave?
An employee and employer may mutually agree to allow the employee to supplement the paid leave with other existing leave.
Does an employee get service credit for time employed by the temp agency before becoming employed by the employer?
Yes. If an employee employed by a temp agency is hired by the employer for whom he was working, the days worked for the temp agency count toward the 30-day eligibility period under the FMLA. 29 CFR § 826.30.
Does the FFCRA apply if an employer’s employee count fluctuates between April 1, 2020 and December 31, 2020?
The employee count is based on the number of employees at the time the employee takes leave. the DOL provides an example:
“If an employer has 450 employees on April 20, 2020, and an employee is unable to work starting on that date because a health care provider has advised that employee to self-quarantine because of concerns related to COVID-19, the employer must provide paid sick leave to that employee. If, however, the employer hires 75 new employees between April 21, 2020, and August 3, 2020, such that the employer employs 525 employees as of August 3, 2020, the employer would not be required to provide paid sick leave to a different employee who is unable to work for the same reason beginning on August 3, 2020.”
Is intermittent leave available?
Employees may take EPSL or EFMLA intermittently only if the employer and employee agree. 29 CFR § 826.50. Subject to employer and employee agreement, EPSL and EFMLA may be taken intermittently for Reason 5 (school/child care) in any increment. Intermittent EPSL is not allowed for Reasons 1-4 and 6 unless the employee is teleworking. In that case, with an employee who teleworks or normally works from home, the employer and employee may agree that EPSL or EFMLA will be taken intermittently and in any increment when the employee is unable because of COVID-19 related reason.
What if an employee does not provide proper notice/documentation?
If an employee does not provide proper notice, employers should give the employee notice of the failure and an opportunity to provide the requisite documentation prior to denying the leave request. 29 CFR § 826.90.
How much notice may an employer require?
Employers may not require notice in advance.
Notice may only be required after the first workday (or portion thereof) for which an employee takes EPSL or EFMLA. After the first day, an employer may require notice as soon as practicable. Notice from an employee’s spokesperson is reasonable. An employer may not require the notice to include documentation beyond what is allowed by Section 826.100, which includes:
• Employee’s name;
• Date(s) for which leave is requested;
• Qualifying reason for the leave; and
• Oral or written statement that the Employee is unable to work because of the qualified reason for leave.
If leave is for Reason 1, an employee must provide the name of the government entity that issued the quarantine or isolation order.
For Reason 2, an employee must provide the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19.
For Reason 4, an employee must provide either the name of the government entity that issued the quarantine or isolation order to which the individual being care for is subject or the name of the health care provider who advised the individual being cared for to self-quarantine.
For Reason 5, the employee must provide the name of the child being cared for, the name of the school, place of care, or child care provider that has closed or become unavailable, and a statement that no other suitable person will be caring for the child during the period for which the employee takes EPSL or EFMLA.
An employer may also request that an employee provide additional material as needed for the employer to support a request for tax credits pursuant to the FFCRA.
An employer is not required to provide leave if an employee does not provide sufficient documentation enabling the employer to support the FFCRA tax credit.
How does job restoration work under the FFCRA?
Employees returning from EPSL or EFMLA have a right to be restored to the same or equivalent position the employee held at the time she took leave. However, employees are not protected from employment actions, such as layoffs, that would have affected the employee regardless of whether she took leave.
In order to deny restoration, an employer must show that the employee would not otherwise have been employed at the time reinstatement is requested. 29 CFR § 826.130.
An employer may deny job restoration to key employees, as defined under the FMLA (29 CFR 825.217), if the denial is necessary to prevent substantial and grievous economic injury to the operations of the employer.
Job restoration requirements for employers with fewer than 25 employees are more complex. An employer who employs fewer than 25 employees may deny job restoration to an eligible employee who has taken EFMLA if:
• The eligible employee took leave to care for his child (Reason 5);
• The position the employee held when his leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by the COVID-19 public health emergency during the period of leave;
• The employer makes reasonable efforts to restore the employee to an equivalent position, with equivalent employment benefits, pay, and other terms and conditions of employment;
• Where the employer’s reasonable efforts to restore the employee to an equivalent position fail, the employer makes reasonable efforts to contact the employee during a one-year period, if an equivalent position becomes available. The one-year period begins on the earlier of the date the leave related to a Public Health Emergency concludes or the date 12 weeks after the employee’s leave began.
What are FFCRA’s record retention requirements?
Employers are required to retain records under FFCRA for four years.
If an employee provides an oral statement or statements to support her leave request, the employer must document and maintain the information in its records for four year. 29 CFR § 826.140.
Employers who deny leave requests because of an exemption must document the determination by an authorized officer and maintain records of such documents for four years.
Is there a private cause of action under the EFMLA provisions?
An employee may file a private action to enforce the EFMLA only if the employer is otherwise subject to the FMLA in the absence of the EFMLA. 29 CFR § 826.151.