ALERT: DEPARTMENT OF LABOR ISSUES REGULATIONS REGARDING COVID-19 RELATED SICK LEAVE, ENHANCED FAMILY AND MEDICAL LEAVE, AND STATUTORY EXCEPTIONS

The United States Department of Labor issued a temporary rule last week to provide clarity to the Families First Coronavirus Response Act ("FFCRA"). The new rule fills in several gaps regarding the FFCRA's sick leave and expanded family and medical leave provisions, which apply to private employers with fewer than 500 employees as well as certain public employers. Our analysis of the FFCRA describes these provisions in greater detail. Both the FFCRA and the newly-issued rule became effective on April 1, 2020 and will remain in effect through December 31, 2020. The temporary rule does not alter the framework for applying tax credits, which will fund the cost of providing the FFCRA's sick leave and expanded family and medical leave provisions for private employers. Instead, it clarifies previously-unresolved issues regarding employees' eligibility to take leave, which may affect the amounts to be paid - and ultimately reimbursed. The Internal Revenue Service has not yet issued any additional guidance governing the application of tax credits.

Some of the most salient clarifications addressed by the temporary rule and related regulations include the following, which are discussed in greater detail below:

  • Clarifying the meaning of "telework" in determining employee eligibility to take either type of FFCRA leave, and correspondingly, the use of "intermittent leave" by employees;
  • Addressing the effects of governmental isolation or quarantine orders (such as "stay-at-home" and "shelter-in-place" rules) on sick leave eligibility, as well as recordkeeping and administrative requirements for employees seeking sick leave; and
  • Providing criteria for statutory exemptions for (1) small businesses with fewer than fifty employees who may be exempt from providing leave if doing so would jeopardize the business's viability, and (2) employees who are "health care providers" or "emergency responders," who are exempt from FFCRA leave.

First, the Department of Labor provided additional guidance as to which employees are - and are not - eligible for COVID-19 related sick leave and expanded family and medical leave addressed by the FFCRA.

  • To qualify for leave under the FFCRA, an employee must be unable to work or telework due to a need for leave. The temporary rule clarifies the meaning of "telework," defining it as "work the employer permits or allows an employee to perform while at home or another location other than the employee's normal workplace," and clarifies that an employee is able to telework if (1) the employer has work for the employee, (2) the employer permits the employee to work from home, and (3) there are no extenuating circumstances, such as serious COVID-19 symptoms, which prevent the employee from performing that work.
  • The regulations clarify that telework may be performed during normal working hours, or at other hours agreed upon by the employer and employee. It may also be performed intermittently - for instance, many employees are also overseeing their children's schoolwork during traditional working hours, and the regulations create an exception for the traditional rule under the Fair Labor Standards Act ("FLSA") that all time between the first and last principal activity of the employee is compensable. For example, if an employee teleworks from 9:00 am to 12:00 pm and then again from 3:00 pm to 5:00 pm, the employer must compensate the employee for the hours actually worked (five hours) but not for all eight hours between the employee's first principal activity at 9:00 am and the employee's last principal activity at 5:00 pm.
  • Absent agreement from an employer, employees may not take leave on an intermittent basis; however, the Department of Labor encourages employers to reach solutions with teleworking employees in order to balance the employee's personal and familial needs with those of the business. An employee may take intermittent leave in any increment agreed upon with his or her employer. While a written agreement as to intermittent leave is not required, it is encouraged by the Department of Labor to ensure a "clear and mutual understanding between the parties." Non-exempt employees who are able to telework must continue to record all hours spent working remotely.

The temporary rule and accompanying regulations further clarify the circumstances under which an employee may qualify for sick leave and for expanded family and medical leave under the FFCRA.

  • The statute identifies three circumstances where an employee could qualify for up to ten days of fully-paid sick leave (up to the statutory cap of $511 per day) and three more for which the employee can be paid at two-thirds of his/her daily rate of pay (up to $200 per day), for which the employer may be reimbursed by tax credits. The higher rate applies where an employee is unable to work or telework due to (1) a governmental quarantine or isolation order, (2) a health care provider's recommendation to self-quarantine, or (3) the employee seeks a medical diagnosis for COVID-19 symptoms. The lower rate applies where (1) the employee is caring for an individual who is subject to a quarantine order or medical recommendation, (2) the employee is caring for a minor child whose school or day-care facility is closed due to COVID-19 concerns, and (3) there are yet-undefined "substantially similar conditions" to be delineated by the Secretary of Health and Human Services.
  • The temporary rule clarifies the effect of governmental "stay-at-home" or "shelter-in-place" orders on an employee's inability to work or telework. An employee only qualifies for sick leave due to the inability to work or telework in situations where government isolation or quarantine orders (including "stay-at-home" or "shelter-in-place" order) prevent an employee from working when a worksite is open with sufficient work for the employee to do. In effect, the critical inquiry is whether the employee would be able to work "but for" being required to comply with the order. Thus, employees who can telework despite an isolation or quarantine order do not qualify. Similarly, if a governmental order requires a business to close or causes a downturn in business resulting in a temporary or indefinite closure, the FFCRA does not afford paid sick leave to an employee. In such situations, lack of work is the reason why an employee cannot come to work, not the order itself, and thus, the employee is not eligible for paid sick leave.
  • The temporary rule limits sick leave for employees who are seeking a medical diagnosis for COVID-19 symptoms to the time that the employee is unable to work because he or she is waiting for or attending an appointment with a health care provider. An employee waiting for the results of a test who is able to telework may not take paid sick leave under this provision unless there are extenuating circumstances, such as serious COVID-19 symptoms, that prevent the employee from teleworking. An employee who is unable to telework while awaiting a test result may continue to take paid sick leave under this provision. If, after seeking a diagnosis, an employee is advised to self-quarantine by a health care provider, the quarantine recommendation would qualify as a separate basis for sick leave under the FFCRA.
  • The temporary rule also addresses various recordkeeping and administrative details regarding the documentation of COVID-19 related leave. Employees are required to provide the following information, which must be retained for at least four years by the employer, prior to taking leave:
    • The employee's name;
    • The dates for which leave is sought;
    • The statutory qualifying reason for leave; and
    • An oral or written statement that the employee is unable to work or telework because of the need for leave
  • The temporary rule also identifies additional information which must be documented with respect to four of the qualifying reasons governing sick leave. Notably, an employee is not required to provide a doctor's note to qualify for sick leave. Where an employee seeks to go on family and medical leave in order to care for a child whose school or day-care facility has closed, the employee must also provide the name of the child, the name of the school/ facility, and certification that no other suitable person is available to care for the child.
  • Unlike the expanded family and medical leave provisions, employees who meet the statutory requirements for sick leave are entitled to ten days of paid leave regardless of how much FMLA leave they have already used. The FFCRA does not, however, grant employees with the right to additional family and medical leave beyond the twelve weeks provided by law. Thus, if an employee has already used four weeks of FMLA leave for unrelated reasons, he or she would only be entitled to eight weeks under the FFCRA. Similarly, if an employee who has not used any FMLA leave during the applicable 12-month period elects to use all twelve weeks afforded by the FFCRA, he or she would not be eligible to use additional FMLA leave during the balance of the 12-month period.
  • The temporary rule and regulations also address statutory exceptions for employers with fewer than fifty employees where providing leave would jeopardize their viability, and for "health care workers" and "emergency responders," whom employers may exempt from the FFCRA:
  • Private employers with fewer than fifty employees may deny COVID-19 related leave under FFCRA when:
    • the leave would cause the employer's expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity;
    • the absence of the employee requesting leave would pose a substantial risk to the financial health or operational capacity of the employer because of the employee's specialized skills, knowledge of the business or responsibilities; or
    • the employer cannot find enough other qualified workers who will be available at the time and place needed to perform the services the employee requesting leave provides, and those services are necessary for the employer to operate at a minimal capacity.
  • Employers must document the facts and circumstances that meet the criteria to justify a denial of leave under these rationales. Such documentation should be retained for four years following the denial of leave.
  • The FFCRA allows employers of "health care providers" and "emergency responders" to exempt such employees from FFCRA leave. The temporary rule broadly defines both terms for purposes of this exclusion:
  • A "health care provider," for these purposes, includes "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." The regulations further provide that this description also applies to individuals employed by entities that "contract[] with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility," and "anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19-related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments."
  • The above definition includes a broad range of employees who may not have any personal involvement in treating COVID-19 patients but does not alter the meaning of "health care provider" in other sections of the FFCRA. For example, it does not alter the definition of "health care provider" for purposes of providing a diagnosis that may entitle an employee to sick leave. That definition remains narrow.
  • The regulations also clarify that the definition of "emergency responder" for purposes of this exclusion 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 a broad range of military, law enforcement officers, firefighters, EMS personnel, physicians, nurses, paramedics, 911 operators, and emergency management personnel, as well as employees with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency.

These new regulations regarding the FFCRA are codified at title 29 of the Code of Federal Regulations, Part 826.

For additional guidance regarding the FFCRA, as well as other client alerts and updates regarding legal issues arising out of the COVID-19 pandemic, please review Sher Garner's COVID-19 Legal Resource Group's website.

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