On April 1, 2020, the United States Department of Labor (USDOL) issued regulations related to the Families First Coronavirus Response Act (FFCRA). April 1, 2020 was also the effective date of this new Act which was signed into law on March 18, 2020.

Information about and a copy of the new regulations are available on the DOL’s website.

 

Key Highlights of DOL Guidance and Regulations on FFCRA

(as of April 3, 2020)

On March 28, 2020, the U.S. Department of Labor (USDOL) released guidance in the form of frequently asked questions concerning the Families First Coronavirus Response Act (FFCRA), which became effective on April 1, 2020.  DOL subsequently released temporary regulations concerning the implementation of the Emergency Paid Sick Leave (EPSL) and the Emergency Family Medical Leave Expansion Act (EFMLEA or FMLA+) on April 1, 2020.  Below we have provided highlights of the DOL guidance and regulations:  

Employee Notice and Documentation of Need for Leave.

The regulations provide different notice requirements depending on the type of leave an employee wishes to take.

    • Childcare and School Closure. Where the need for leave is foreseeable, employees must provide notice “as soon as practicable.”
    • EPSL Leave (non-childcare). Employer may require an employee to follow reasonable notice procedures after the first workday or partial workday they are out on leave. Notice need not be given in advance.

Documentation. (Section 826.100 of the Act).  Documentation in support of an employee request for EPSL or FMLA+ must include:  (1) the employee’s name; (2) dates for which leave is requested; (3) qualifying reason for the leave request; and (4) an oral or written statement that the employee is unable to work because of the qualified reason for leave.

Failure to Provide Notice. If an employee fails to give notice, the employer should notify the employee and provide the employee with an opportunity to provide any required documentation prior to denying the request for leave.

Required Information. Depending on the nature of the qualifying reason, an employee may need to provide additional “information” (we note the use of the word “information” rather than “documentation”):

  • Employees subject to a Federal, State, or local quarantine order must provide the name of the governmental entity that issued the order.
  • Employees who have been advised to self-quarantine by a health care provider must provide the name such health care provider.
  • Employees caring for an individual subject to a quarantine or isolation order or an individual advised to self-quarantine by a health care provider must provide the name of the governmental entity that issued the order under which the individual being cared for is subject; or the name of the health care provider that advised the individual to self- quarantine.
  • Employees caring for a child whose school or place of care has closed must provide the name of the child, name of the school or place of care that has closed or become unavailable, and a representation that no other suitable person is available to care for the employee’s son or daughter during the time period for which the employee takes leave.

EPSL: Covered Uses 

Subject to Quarantine or Isolation Order: For purposes of EPSL, the regulations broadly define this to include quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that causes the employee to be unable to work even though the employer has work that the employee could perform. This also covers advisories directed to categories of citizens (e.g. certain age ranges or medical conditions) to quarantine, isolate, shelter in place, or state at home.

The question is whether the employee would be able to work or telework “but for” being required to comply with the isolation or quarantine order.  An employee subject to a quarantine or isolation order is not eligible for EPSL where his or her employer does not have work for the employee to perform, either at the worksite or remotely.  Section 826.20(a)(2) provides that an employee subject to a quarantine or isolation does not qualify for EPSL if they are able to telework, unless there are extenuating circumstances preventing the employee from teleworking.  

Self-Quarantine Based on Advice of Health Care Provider First, the health care provider must advise the employee to self-quarantine based on a belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.  Second, the employee must be unable to work or telework based on this advice. Therefore, an employee who is self-quarantining and able to telework would not be able to use EPSL, absent extenuating circumstances (e.g. serious COVID-19 symptoms).  

Medical Diagnosis: The third qualifying reason for EPSL applies where an employee is experiencing symptoms of COVID-19 andseeking a medical diagnosis.  Section 826.20(a)(4) states that the symptoms of COVID-19 include: fever, dry cough, shortness of breath, or any other COVID-19 symptoms the CDC identifies. The regulations interpret this to mean that EPSL leave taken must be limited to the time the employee is unable to work while obtaining a medical diagnosis, such as making, waiting for, or an attending an appointment for a COVID-19 test.  The employee may not use ESPL to self-quarantine without seeking a medical diagnosis.  An employee able to telework while waiting for a diagnosis may not use EPSL for this reason.  

Care for a Quarantining or Isolating Individual: The regulations that apply to this provision of the EPSL, define “individual” being cared for as “an immediate family member, roommate, 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 or she- self quarantined or was quarantined.”  

Child Care: An employee may only take EPSL or FMLA+ leave for this reason where there is no other suitable person (e.g. co-parent, co-guardian, or usual child care provider) available to care for the child. 

NoteAlthough the FMLA+ provisions previously referenced a child under 18 years of age. For the purposes of ESPL and the FMLA+, the DOL regulations clarify that the definition of “son or daughter” includes a child who is under 18 years of age and a child 18 years of age or older who is incapable of self-care because of a mental or physical disability. 

 Emergency Responders Exemption

The FFCRA provides that employers of emergency responders may exclude such employees from eligibility under EPSL and FMLA+.  The regulations provide some extra guidance.  (A more detailed discussion of the merits and mechanics of excluding emergency responders is provided in the next section).

  • Emergency Responder Defined. The regulations broadly define an emergency responder as: an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or others needed for the response to 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 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 operation of the facility.
  • Existing Leave and FMLA Benefits Protected. An employer’s election to exclude emergency responders from FFFCRA provisions does not impact those employees’ earned or accrued sick, personal, vacation, or other employer-provided leave under established policies or contracts.  Also, emergency responders cannot be excluded from ordinary FMLA leave.

Intermittent Use of EPSL and FMLA+  

Intermittent leave is allowed under the FFCRA if both employer and employee agree on the intermittent use of leave, but with restrictions depending upon the type of work.

  • Show-Up Work. In the case of jobs where the employee is expected to leave home and go to the workplace, intermittent leave usage is limited to leave necessary to care for the employee’s child whose school or care place is closed, or whose childcare provider is unavailable. The rationale for this limitation is to reduce the risk that employees reporting to the worksite may spread the virus.  Employees may not use intermittent ESPL leave for any other qualifying reason.  As a result, an employee who takes ESPL must do so until the employee exhausts that leave or no longer has a reason to take leave.
  • Telework. An employee may take EPSL or FMLA+ leave intermittently, in any agreed increment of time, while he or she is teleworking.  While there must be a “clear and mutual understanding” between the parties, the regulations do not require that the agreement be reduced to writing.  The agreement should include the increments of time in which intermittent leave may be taken.  Obviously, NMP recommends any such agreements be in writing.

Substitution of Employer Provided Leave 

The DOL regulations explain how an employee’s earned or accrued paid leave may be used in connection with EPSL and FMLA+ leave. 

  • With respect to the two-weeks (up to 80 hours) of EPSL, it is up to the employee whether he or she used EPLS or accrued leave provided by the employer when faced with an EPLS qualifying event. An employer cannot require an employee to use employer-paid leave rather than EPLS.
  • For the initial two weeks of unpaid leave under FMLA+, an employee may choose to use the two-weeks (up to 80 paid) of EPSL during this period or can use accrued leave or some combination to get to 100% of their pay, however the employer can require this to count towards the overall FMLA+ leave entitlement.
  • During the ten-week period of paid FMLA+ leave, an employee may, but is not required to,use additional employer-provided leave to get to 100% of their pay, subject to an agreement with their employer.  Such agreement does not extend the amount of FMLA+ leave the employee is entitled to.  An employer cannot require that an employee “top-off” FMLA+ leave with accrued paid leave.

Overall, it is important to remember that FFCRA leave is to be considered in addition to, and not a substitute for, any other leave that an employee is entitled to under their employer’s policy or collective bargaining agreement.  As such, an employer may not deny an employee EPSL or FMLA+ leave on the grounds that the employee has already taken leave from another source for reasons related to COVID-19.  In other words, any use of leave under the FFCRA cannot count against an employee’s existing balance or accrual of leave in accordance with their employer’s policies.   

Prior to the effective date of the FFCRA, many employers may have voluntarily provided employees with additional paid leave due to the COVID-19 outbreak. An employer must provide FFCRA leave to eligible employees in addition to whatever voluntary leave plan the employer instituted prior to its passage.  However, the regulations do confirm that employees do not have the right to use EPSL or EFMLEA retroactively.  

Intersection between EPSL and FMLA

Both the EPSL and FMLA+ allow an employee to take paid leave to care for the employee’s son or daughter as a result of the closure of the child’s school or place of care. As anticipated based on earlier guidance, FMLA+ and classic FMLA have a combined maximum of 12 weeks leave.  Where an employee has already taken ordinary FMLA leave, the 12 weeks available under FMLA+ is reduced by the amount of ordinary FMLA already taken this year. Where an employee qualifies for leave under both EPLS and FMLA+, an employee may run the two leaves concurrently.  This allows the employee to be paid for the full 12 weeks of FMLA+ rather than having the first two weeks unpaid. Note however that an employee who takes two weeks of EPSL to care for the employee’s child, would not be eligible to take additional EPSL for any other qualifying reason. It is possible that an employee could receive 14 weeks of leave under FFCRA if he or she was to use all 12 weeks of FMLA or FMLA+ and later uses his or her EPSL for a non-childcare related reason.