A man working from home on a laptop is distracted by his son folding a towel in the background

On the same day that the Families First Coronavirus Response Act (FFCRA or Act) became effective, the Department of Labor (DOL) issued a temporary rule that not only interprets the Act but also provides clarity to the three sets of Q&As previously issued by the DOL. Effective April 1, 2020, the FFCRA applies to private employers with fewer than 500 employees and certain public employers. The Act requires covered employers to provide leave for certain COVID-19-related reasons and reimburses employers for the paid leave portions by providing tax credits. The paid leave requirements of the FFCRA as interpreted by the Secretary of Labor will appear in Title 29 CFR 826.

We’ve highlighted below some the most important clarifications in this temporary rule, including employee threshold calculation, telework, intermittent leave, small business exemptions, qualifying reasons for leave, documentation requirements, and health provider exemptions. We strongly advise everyone to review the new regulations, which expire on December 31, 2020, in their entirety.

How to Calculate the 500-Employee Threshold

29 CFR 826.40(a) specifies that to make the determination as to which workers should count toward the 500-employee threshold, employers should include full and part-time employees, employees on leave; temporary employees whom they jointly employ with another employer (regardless of whether another employer maintains the jointly employed employees on its payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if a continuing employment relationship exists). Independent contractors do not count toward the 500-employee threshold, nor do employees who have been laid off or furloughed. The determination must be made at the time an employee would take leave under the FFCRA.

Telework and Quarantine Orders

29 CFR 826.10 defines telework broadly. Employees who are teleworking as a result of COVID-19 must always record and be compensated for the hours they worked including overtime, as required under the Fair Labor Standards Act (FLSA). However, an employer is not required to compensate employees for unreported hours worked while teleworking for COVID-19 related reasons. In addition, an employee subject to a quarantine or isolation order may not take paid sick leave where the employer does not have work because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order.

How Does a Small Business Qualify for an Exemption?

The Secretary of Labor has the authority to exempt employees with fewer than 50 employees from the FFCRA’s requirements when compliance would jeopardize the viability of the business.

To use this exemption, an employer must determine that one of the following circumstances applies:

  • Such leave would cause the small business’s expenses and financial obligations to exceed available business revenue and cause the small business 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 employer because of their specialized skills, knowledge of the business, or responsibilities; or
  • The small employer cannot find enough 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 these labor or services are needed for the small employer to operate at a minimal capacity.

Small employers need to document the facts and circumstances that meet these criteria, but do not need to send the documentation into the DOL.

What are the Qualifying Reasons Under the Emergency Paid Sick Leave Act (EPSLA)?

The temporary regulations clarify when an employee may take paid sick leave if the employee is unable to work for any one of the six qualifying reasons related to COVID-19.

1) Where an employee is unable to work because the employee “is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.” “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. An employee subject to one of these orders may not take paid sick leave where the employer does not have for work for the employee.

2) Where an employee is unable because he or she has been advised by a health care provider to self-quarantine for COVID-19 reasons. The 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. If an employee who is self-quarantining is able to telework, he or she may not take paid sick leave for this reason, provided (a) the 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 self-quarantining, and (c) there are no extenuating circumstances.

3) Where an employee applies for paid sick leave when they are experiencing symptoms of COVID-19 and seeking a medical diagnosis. An employee experiencing COVID-19 symptoms may take a paid sick leave for time spent making, waiting for or attending an appointment for a test for COVID-19. However, the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.

4) Where an employee is unable to work because he or she needs to care for an individual who is either a) subject to a Federal, State or local quarantine or isolations order, or b) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. Additionally, the individual being cared for must be subject to a Federal, State or local quarantine or isolation order. (Important to note that caring for an individual under this reason is not limited to defined family members, as normally applies to “regular” FMLA.)

5) When an employee is unable to work because the employee needs to care for his or her son or daughter if: a) the child’s school or place of care has closed; or b) the childcare provider is unavailable due to COVID-19 related reasons.  (This is the only reason that overlaps the Emergency Family and Medical Leave Expansion Act (EFMLEA) provision of the FFCRA.)

6) When an employee is unable to work because the employee is experiencing any other substantially similar condition specified the Secretary of Health and Human Services.

How Does the FFCRA Interact with the FMLA?

Under the FFCRA, employers need to have been employed for only 30-calendar days in order to be eligible for the EFMLEA. However, an employee’s eligibility for EFMLEA depends on how much “regular” FMLA leave the employee has already taken during the 12-month period used by the employer for FMLA leave. The EFMLEA provisions do not increase the total amount of FMLA leave an employee can take during an applicable FMLA 12‑month period.

Intermittent Work Is Allowed Under the FFCRA

29 CFR 826.50 describes the circumstances under which paid sick leave or expanded family and medical leave may be taken intermittently under the FFCRA. The DOL emphasizes that there must be agreement between the employee and employer as to how the employee may take intermittent paid sick leave or intermittent expanded family and medical leave or both. In addition, where an employer and employee agree that the employee may take leave intermittently, they must also agree on the increments of time in which the leave may be taken.

Employees Must Provide Documentation in Support of Leave

The DOL has imposed new documentation requirements on employees who request leave under the FFCRA. The documentation must include a statement signed by the employee containing the following information: (1) the employee’s name; (2) the dates 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 a COVID-19 qualifying reason. In addition, the employee must provide additional documentation depending on the qualifying COVID-19 reason for leave, such as the name of the government entity that issued the quarantine or isolation order to which the employee is subject or the name of the health care provider who advised the employee to self-quarantine for COVID-19 related reasons. When requesting paid sick leave or expanded FMLA for leave to care for a child whose school or childcare facility has been closed, the employee must provide the name of the child being cared for, the name of the school or childcare provider that is closed or unavailable due to COVID-19 reasons, and a statement representing that no other suitable person is available to care for the child during the period of requested leave.

Reinstatement Rights Under the FFCRA

An employee is entitled to be reinstated upon their return to work from paid sick leave or expanded family and medical leave. However, the employee is not protected from employment actions that would have occurred regardless of whether the employee took leave. In order to deny restoration to employment, the burden is on employers to demonstrate that an employee would not otherwise have been employed at the time of reinstatement

Reinstatement of an employee doesn’t apply to an employer who has fewer than 25 employees if all of the following conditions are met:

  • the employee took leave to care for his or her child whose school or place of care was closed or whose childcare provider was unavailable for COVID-19 related reasons;
  • the employee’s position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by a public health emergency;
  • the employer made “reasonable efforts” to restore the employee to the same or an equivalent position; and
  • 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.

Exclusion of Health Care Providers and Emergency Responders

Both the EFMLEA and the EPSLA allow an employer to exclude employees who are “health care providers” or “emergency responders”. A “health care provider” is “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.” This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

An “emergency responder” is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19.  This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, 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.

Continuation of Health Insurance

If an employer provides group health coverage, employees are entitled to continue such coverage during FFCRA leave. Employees must continue to make any regular contributions to the cost of their health coverage during this time.

No Retroactive Coverage for Leaves Taken Before April 1, 2020

Employee are not entitled to retroactive pay for absences that occurred before the FFCRA went into effect on April 1, 2020.

Conclusion

In promulgating these temporary regulations, the DOL makes clear that providing maximum flexibility to employees and employers during a public health emergency should not impact the underlying relationships between an employer and employee. The DOL encourages employers and employees to work together in resolving leave issues.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.