DOL Issues FFCRA Regulations
On April 1, the U.S. Department of Labor (“DOL”) issued its long-awaited regulations on the Families First Coronavirus Response Act (“FFCRA”), which went into effect the same day. Although the DOL issued several rounds of detailed informal guidance in recent weeks, which we addressed in prior posts, its regulations have the force of law. We have reviewed the regulations and commentary, which are nearly 125 pages in length, and wanted to highlight some relevant portions that have clarified our understanding of the FFCRA and reiterate others that are of particular importance to employers.
When is an Employee Unable to Work or Telework?
In its regulations, the DOL confirms that an employee is not “unable to work” – and therefore ineligible to use Emergency Paid Sick Leave (“EPSL”) or Emergency FMLA Leave (“E-FMLA”) -- if the employer does not have work for the employee. This is true for any reason, including if the employer is subject to a shutdown order or lacks work because of COVID-19.
The DOL clarifies that an employee is able to telework – and therefore ineligible to use EPSL and/or E-FMLA – if: (1) the employer has work for the employee; (2) the employer allows the employee to work remotely; and (3) there are no extenuating circumstances that would prevent the employee from performing that work (e.g., a power outage).
Notably, the regulations also state that an employer does not have to pay for hours that a non-exempt employee who is teleworking for COVID-19 reasons, unless the employer knew or should have known about such telework.
When Can an Employee Use EPSL?
The regulations provide greater clarification for the reasons why an employee can take EPSL. It is critical to remember, however, that the employee must be unable to work or telework because of a qualifying reason.
Subject to a Quarantine or Isolation Order: The DOL states that a “federal, state or local isolation order” includes governmental orders to shelter in place or stay at home. If, however, a business is closed as a result of such an order, it need not provide EPSL because the business, not the individual employee, is affected by the order.
Advised By a Health Care Provider to Self-Quarantine: An employee can seek EPSL to self-quarantine if: (a) a health care provider advises the employee to self-quarantine based on a belief that: (i) he/she has COVID-19; (ii) he/she may have COVID-19; or (iii) he/she is particularly vulnerable to COVID-19; and (b) he/she is unable to work or telework because of following this advice. Notably, this does not mean that an employee who does not want to come to work because he/she fears contracting COVID-19 or chooses to self-quarantine because he/she believes that he/she has been exposed is eligible for EPSL.
Experiencing Symptoms and Seeking Medical Diagnosis: Under the regulations, an employee may be eligible for EPSL because he/she is: (a) experiencing fever, dry cough, shortness of breath, or any other COVID-19 symptom and (b) unable to work or telework because he/she is affirmatively taking steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment.
Caring for a Son or Daughter Whose Place of Care is Closed: The regulations define a “place of care” to include day care facilities, preschools, homes, and summer camps. A “son or daughter” for EPSL and E-FMLA purposes is defined the same as it is under the FMLA. This includes children under 18 years of age and children 18 years of age and older who are incapable of self-care because of a mental or physical disability.
Caring for a Son or Daughter Whose Child Care Provider is Unavailable: Although the regulations generally require a “child care provider” to be licensed, regulated, or registered, it can also include a family member or friend who “regularly cares” for the child (whether or not that “child care provider” is compensated). The employee seeking leave must represent that no other suitable person is available to care for the child during the period of requested leave.
Caring for an Individual Who Has Been Quarantined or Advised to Self-Quarantine: For this purpose, an “individual” is an immediate family member, a person who regularly resides in the employee’s home, or a person that would be expected to care for the employee if he/she were ill. The employee must have a personal relationship with this “individual.”
Can an Employee Take Intermittent EPSL and/or E-FMLA?
If the employer and employee agree, a qualifying employee can take intermittent EPSL and/or E-FMLA subject to certain limitations. If an employee is working remotely, he/she may take E-FMLA or EPSL intermittently for any qualifying reason (and in any increment less than a full day if both parties agree). If an employee is not working remotely, he/she may take E-FMLA or EPSL intermittently for school closure/child care unavailability reasons.
Can an Employer Require an Employee to Substitute Accrued Paid Leave?
It depends. An employer cannot require that an employee use any accrued paid leave (e.g., PTO, sick time, vacation time) for the two weeks of EPSL.
For the initial two weeks of E-FMLA Leave, which are unpaid, the employer can require or the employee can choose to use any accrued paid leave. If, however, an employee chooses to have his/her EPSL run concurrently with the first two weeks of E-FMLA Leave, an employer cannot require him/her to first use any accrued paid leave.
For the remaining ten weeks of E-FMLA Leave, the employee can choose (but cannot be required to) use accrued paid leave concurrently so that he/she can receive his/her full pay. If the employer and employee agree to this arrangement, it does not extend the employee’s E-FMLA entitlement.
Can an Employee Receive More Than 80 Hours of EPSL If He/She Changes Employers During 2020?
No. Under the regulations, an employee cannot receive more than eighty (80) hours of EPSL during 2020. If an employee has used only a portion of his/her EPSL entitlement before switching employers during 2020, he/she can use the remaining EPSL entitlement while employed by the new employer. Notably, however, the regulations do not address what happens to E-FMLA Leave if an employee changes employers during 2020.
Do We Need to Post the Required Notice Even If Some or All of Our Employees Are Not Covered by the FFCRA?
Yes.
What Advanced Notice Does an Employee Need to Give?
It depends on the reason for leave. If the employee’s need for E-FMLA and/or EPSL for school closure/child care unavailability is foreseeable, he/she must give notice as soon as practicable. If an employee needs to take EPSL for any other reason, an employer must accept notice from the employee (or his/her spokesperson, such as a family member) after the first full or partial workday that such leave is used.
The regulations also state that oral notice of the initial need for leave is permissible if the employee provides enough information for the employer to determine that the reason qualifies for EPSL and/or E-FMLA. If an employee fails to provide notice or supporting information or documentation, he/she should be given notice of the failure and an opportunity to correct the deficiency before denying the leave.
What Documentation Do We Need to Substantiate Leave?
This and other related topics are addressed in our recent post on the IRS’s FFCRA guidance.
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