The Secretary of Labor promulgated two dozen new regulations to aid in the implementation of the leave provisions in the Families First Coronavirus Response Act (FFCRA) signed by the president on March 18^th.  The new regulations cover everything from defining the term “child” to the procedure for filing a complaint for non-compliance.  Among the highlights, the regulations clarify the following:

• • “Quarantine or Isolation Order” defined. The Emergency Paid Sick Leave Act (EPSLA) in the FFCRA provides for paid leave if an employee is “subject to a Federal, State, or local quarantine or isolation order related to COVID-19” or caring for someone subject to such an order.  The new regulations define the term “subject to a Federal, State or local quarantine or isolation order” broadly to include governmental orders that advise some or all citizens to shelter in place, stay at home or otherwise restrict their mobility.  CFR sec. 826.10(a).  However, that leave is only available to an employee if one of these orders prevents the employee from working or teleworking. CFR sec. 826.20(a)(2). Thus, if the employer does not have work for the employee, the employee subject to such an order is not entitled EPSL.  Presumably, employees of “essential businesses” who are exempt from quarantine or isolation orders are not entitled to leave in these circumstances because the orders are not a “but for” reason preventing them from working or teleworking.  Rather, under most of the current shelter in place and stay at home orders, employees of exempt essential businesses are specifically allowed to work, notwithstanding the requirement for the general population to quarantine or isolate.
  • Health Care Provider Exemption. The EPSLA and the Emergency Family and Medical Leave Expansion Act (EFMLEA) allow employers of health care providers to exclude those employees from the paid leave provisions. Until now, it was unclear exactly which employees were exempt.  The new regulations clarify that the term is to be defined broadly for purposes of determining which employees are exempt form the leave provisions and include “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering healthcare instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, [etc.].” CFR sec. 826.30(c)(1)(i).  Of course employers can always choose to allow their health care employees to take paid leave and might have other policies in place that allow them to do so.
  • Number of Employees. The EPSLA and EFMLEA only apply to employers with fewer than 500 employees. The regulations explain that the employee count must include all full-time and part-time employees, currently employed in the United States, regardless of length of service, including employees jointly employed with temporary placement agencies and day-laborers supplied by temp agencies. CFR sec. 826.40.  The number of employees is calculated as of the time the leave is taken.  Thus, for example, an employee of an employer with 490 employees would be entitled to take a qualifying leave.  If, however, the employer hired 15 more employees the day before the employee sought to exercise his or her leave rights, the employer would be exempt and the employee would no longer be entitled to EPSLA and EFMLEA benefits.  Note also, for the purpose of reaching the 500 employee threshold for employers with overlapping ownership interests, the FMLA “Integrated Employer” test applies.  Likewise, for joint employer situations, the FLSA joint employer test will be utilized.
  • Small Employer Exemption. The regulations attempt to clarify under what circumstances a business with fewer than 50 employees can take advantage of the small business exemption in the EPSLA and the EFMLEA. A small business is entitled to the exemption if an authorized officer has determined that
    • the leave requested would result in the business’ expenses and financial obligations to exceed available revenues, causing the business to “cease operating at a minimal capacity”;
    • the employee’s absence would entail a “substantial risk to financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities”; or
    • there are not enough workers to do the job if the leave is granted.

To use the exemption, the employer must maintain documentation that providing EPSL or EFMLEA leave would jeopardize the viability of the business as a going concern.  Keep in mind, however, that the exemption is not automatic.  The employer will need to apply for and be approved by the DOL in order to take advantage of the exemption.  Currently, there is no process for doing so, but one is expected to be announced soon.

• • Intermittent Leave. The EPSLA and EFMLEA leave provisions can be taken intermittently, but only for the purpose of caring for a child whose school or child care provider is closed or unavailable and only if both the employer and the employee agree to the intermittent use of the leave. However, in order to curtail the spread of COVID-19, the use of intermittent leave is expressly prohibited if the employee is sick, symptomatic, subject to quarantine or caring for someone who is sick, symptomatic or subject to quarantine. CFR sec. 826.50.
  • Interplay with Other Leave Benefits and Vacation/PTO: The regulations explain that an employee’s entitlement to or use of EPSLA and EFMLEA cannot diminish, reduce, or eliminate any other right to leave benefits under any federal, state, or local law, or under an employer policy or collective bargaining agreement. Thus, for example, if an employer already had a paid sick leave policy, an employee would still be entitled to full use of EPSLA and EFMLEA in addition to whatever benefits were available under the employer’s policy.  However—for leave used to care for a child—an employee may elect to use, or an employer may require that an employee use, leave available under other employer policies, such as vacation or personal leave PTO, concurrently.
  • EFMLEA and the FMLA. The regulations clarify that the total amount of leave time under these statutes remains 12 weeks.  Therefore, if an employee has already used 6 weeks of her FMLA leave, she is only entitled to use an additional 6 weeks of EFMLA leave for a qualifying reason.
  • Employees for Whom No More Work Is Available: Consistent with reinstatement requirements under the FMLA, the FFCRA does not insulate employees who would otherwise have been subject to adverse employment actions such as a termination for cause or a layoff that occurs while the employee is out on leave. As with the FMLA, it is the employer’s burden to demonstrate the action would have been taken even if the employee had not taken the leave.
  • Documenting Need for Leave. To qualify for EPSL leave, employees must provide their employer with their name, dates of requested leave, qualifying reason for leave, and an “oral or written statement” that the employee is unable to work because of the qualified reason for the leave. If the employee is taking leave because of a quarantine or isolation order, the employee must also provide the name of the government entity issuing the order; if advised to self-quarantine, the employee must provide the name of the health care provider. The employee must provide similar information if taking leave to care for someone else and if caring for a child whose school or childcare closed, the employee must provide the name of the child and the school/child care and a statement that no one else is available to care for the child.  The Employer may also request any materials needed to support its request for tax credits under the FFCRA.  Note that the regulations do not require the employee to provide a doctor’s note.
  • Health Care Coverage. During EPSL and EFMLEA, the employee’s employer-provided health care coverage is to continue on the same terms as if the employee was not on leave. CFR sec. 826.110
  • Records. Employers are required to keep all records relating to leaves under the FFCRA for a minimum of 4 years. CFR sec.826.140

The regulations cover a variety of related topics.  For a complete look at the DOL’s FFCRA regulations, click here.

SHLC attorneys are available to be retained for private consultation and advice.  You can also find information on other COVID-19 employment issues at the SHLC Coronavirus Pandemic Employer Resources page, at https://suttonhague.com/coronavirus/.  For a schedule of our upcoming webinars, visit https://suttonhague.com/events.  We also have downloadable webinars on this and related topics at our Calnevalaw.com website.  Regarding any tax issues, including payroll taxes, employers are strongly advised to consult with a qualified tax CPA.