Over the weekend, the Department of Labor released additional guidance regarding the emergency family and medical leave (EFMLA) and emergency paid sick leave (EPSL) required by the Families First Coronavirus Response Act (FFCRA). The new questions and answers — Q&A 60-79 — largely reiterate prior guidance and the recently issued DOL regulations. We’ve covered these developments over the past few weeks.
So what is in the fourth round of DOL Q&A?
- An employee can take EPSL for, among other reasons, if the employee is unable to work or telework because the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (note: this is Reason 1 of six EPSL qualifying reasons). Quarantine, isolation, shelter-in-place, and stay-at-home orders can support EPSL only if the employer has work for an employee and the order is the reason the employee cannot work or telework. A government order does not support EPSL if an employer does not have work for the employee as a result of a government order. (FAQ 60)
- An employee is eligible for EPSL because she has been advised by a health care provider to self-quarantine (EPSL Reason 2) only if a health care provider directs or advises the employee to stay home or self-quarantine because the health care provider believes the employee may have COVID-19 or is “particularly vulnerable” to the virus and self-quarantining prevents the employee from working. (FAQ 61)
- An employee is not eligible for EPSL if he self-quarantines without being directed or advised to do so by a health care provider. An employee is eligible for EPSL if he has been directed or advised by a health care provider to self-quarantine (see bullet 2, above) or because the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis. However, if an employee tests positive for COVID-19, he may take EPSL if unable to work or telework. (FAQ 62)
- EPSL is available for an employee who cares for an individual subject to or advised to quarantine or isolate (EPSL Reason 4). “Individual” is someone who cannot care for him or herself and depends upon the employee for care. This means the individual must be someone where there is a reasonable expectation that the employee would provide care. EPSL is available if providing that care prevents the employee from working, including telework. (FAQ 63-65)
- EPSL and EFMLA are available when an employee’s child’s school or place of care is closed or child care provider is unavailable, because of COVID-19. “Place of care” is the physical location where the child’s care is provided (i.e,, day care facilities, preschools, before and after care programs, schools, homes, camps, enrichment programs). “Child care provider” is the person who cares for an employee’s child(ren) (i.e., nannies, au pairs, babysitters) and those who provide child care at no cost on a regular basis (i.e., grandparents, aunts/uncles, neighbors). (FAQ 67-68)
- A school or place of care is closed if the physical location is closed. As schools transition to digital learning, the shift to online/remote learning, even with graded assignments, does not mean the school or place of care is now open. (FAQ 70).
- What is a “substantially similar condition” as used in EPSL Reason 6? The DOL explains at FAQ 73 that we still don’t know: “The U.S. Department of Health and Human Services (HHS) has not yet identified any ‘substantially similar condition’ that would allow an employee to take paid sick leave. If HHS does identify any such condition, the Department of Labor will issue guidance explaining when you may take paid sick leave on the basis of a ‘substantially similar condition.’”
- Seasonal employee may not be entitled to EPSL or EFMLA. Per the DOL, “if your seasonal employees are not scheduled to work, for example, because it is the off-season, then you do not have to provide paid sick leave or expanded family and medical leave.” This explanation is consistent with DOL regulations that leave is available only if the qualifying reason is the reason the employee is unable to work/telework. During the off season, a seasonal employee would not have work because the employer has no work at that time.
- To pay seasonal employees with irregular schedules, calculate the daily amount the employer must pay a seasonal employee with an irregular schedule by taking the following steps:
- calculate how many hours of leave the seasonal employee is entitled to take each day. This is equal to the average number of hours each day that the employee was scheduled to work over the period of employment, up to the last six months.
- calculate the seasonal employee’s regular hourly rate of pay, which is the sum of all wages paid over the period of employment, up to the last six months, divided by the number of hours actually worked over the same period.
- multiply the daily hours of leave (step a) by your employee’s regular hourly rate of pay (step b) to compute the base daily paid leave amount.
- determine the actual daily paid leave amount, which depends on the type of paid leave taken and the reason for such paid leave. Meaning, refer to the daily rate (either 100% or 2/3, depending on the reason) and the daily and aggregate caps (which also vary based on the leave reason). (FAQ 75)
- EFMLA and EPSL are generally not available to employees receiving workers’ compensation or temporary disability benefits. However, if an employee was able to return to work, including light duty, and a EFMLA or EPSL qualifying reason prevents the employee from working, then the employee may be eligible. (FAQ 76)
- An employee on a mandatory leave of absence is not eligible for EFMLA or EPSL, but an employee on a voluntary leave of absence may be eligible for such leave. Per the DOL: An employee on a voluntary LOA may end the leave and use EPSL or EFMLA if otherwise qualified. In a mandatory LOA situation, however, the leave prevents the employee from working, not a leave-qualifying reason, and therefore, the employee is not eligible for EPSL or EFMLA. (FAQ 77)