On April 1, 2020, the U.S. Department of Labor (DOL) posted a temporary rule containing regulations pursuant to the Families First Coronavirus Response Act (FFCRA). Like the FFCRA, the rules went into effect as of April 1st and will remain effective through December 31, 2020, although they could be slightly modified when the final rule is released. The regulations provide direction as to the administration of the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), both parts of the FFCRA.  This article discusses some aspects of those regulations that may help employers administer FFCRA leave.

Paid Leave Entitlements

Many are already aware of the six reasons for which employees can take leave under the Emergency Paid Sick Leave (EPSL) entitlements created by the FFCRA. The regulations issued April 1st provide further clarification for the qualifying reasons for sick leave.

  • The first reason for taking qualifying paid sick leave is when an employee is subject to a Federal, State, or local COVID-19 quarantine or order. While quarantine or isolation orders also include stay at home orders, an employee may only take paid leave if being subject to one of these orders prevents the employee from working or teleworking while under the order.

 

  • The second reason for taking qualifying paid sick leave is when an employee has been advised by a health care professional to self-quarantine for a COVID-19 related reason. This advice must be based on the health care professional’s belief that the employee has or may have COVID-19, or is particularly vulnerable to COVID-19. The employee must also be unable to telework.

 

  • The third reason for taking qualifying paid sick leave is where an employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis. The symptoms that could trigger this are fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention (CDC). This leave is limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis. An employee who is waiting for the results of a test who is otherwise able to telework may not take the paid leave. An employee who is unable to work while awaiting a test result is entitled to leave, for the wait time and while self-quarantining upon order of the doctor, regardless of the test result.

 

  • The fourth reason for qualifying paid sick leave is where an employee is unable to work or telework due to the need to care for an individual who qualifies under the first and second reasons above. However, this leave may not be taken for someone with whom the employee has no personal relationship. Rather, the ​individual being cared for must be 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.

 

  • The fifth reason for taking qualifying paid sick leave applies when an employee is unable to work or telework because the employee needs to care for his or her son or daughter due to the closure of school or child care center or the child care provider is unavailable due to COVID-19 related reasons. This reason also applies to the Emergency Family and Medical Leave Expansion Act. An employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for his or her child. Generally, an employee does not need to take such leave if another suitable individual— such as a co-parent, co-guardian, or the usual child care provider—is available to provide the care the employee’s childs needs.

 

  • The sixth reason for taking qualifying paid sick leave applies when an employee is unable to work or telework because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. No such conditions have yet been specified.

The rules also explain that any leave taken by an employee under the Expanded Family Medical Leave (EFMLA) entitlement counts towards the twelve weeks of FMLA leave to which the employee is normally entitled under the FMLA. An employee may also elect to use, or an employer may require that an employee take leave under the employer’s policies that would be available to the employee to care for a child, such as vacation or personal leave or paid time off, concurrently with expanded family and medical leave, and the employer must pay the employee a full day’s pay for that day. This flexibility allows employees to receive full pay during the period for which they have preexisting accrued vacation or personal leave or paid time off.

Important Definitions

The regulations provide definitions for the terms “health care provider” and “emergency responder.”  The term “health care provider” includes health care providers who are capable of providing health care services necessary to combat the COVID-19 public health emergency. Such individuals include not only medical professionals, but also other workers who are needed to keep hospitals and similar health care facilities well supplied and operational. The Department adopted a broader definition of “health care provider” for exemption purposes only.

The Department has interpreted “emergency responder” broadly. The term “emergency responder” is intended to include those categories of employees who (1) interact with and aid individuals with physical or mental health issues, including those who are or may be suffering from COVID-19; (2) ensure the welfare and safety of our communities and of our Nation; (3) have specialized training relevant to emergency response; and (4) provide essential services relevant to the American people’s health and well-being. The Department found that no list could be fully inclusive of the differing needs of specific communities and therefore allows the highest official of a state or territory to identify other categories of emergency responders, as necessary. The EFMLEA and EPSLA both provide for exemptions for health care providers and emergency responders. The employer must affirmatively elect to exclude these employees.

Intermittent Leave

The regulations also permit an employee to take EPSL and EFMLA leave intermittently, if the employer agrees to such an arrangement. However, intermittent EPSL leave may only be taken for reason #5 or for EFMLA (caring for a child whose school or daycare has closed due to COVID-19).

Employer Coverage under the EPSLA and EFMLEA

Private employers that employ fewer than 500 employees at the time an employee would take leave must comply with FFCRA. In determining who counts as an employee, employers should include both full-time and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency. Furloughed employees and employees who have been laid off and not subsequently reemployed do not count towards the 500-employee threshold.

The regulations also set forth objective criteria for when a small business with fewer than 50 employees can deny paid sick leave or expanded family and medical leave for the employee’s son or daughter whose school or child care center has closed, or a child care provider is not available for COVID-19 related reasons. A small business is exempt when: (1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or (3) the small employer cannot find enough other 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.

If a small employer meets the exemption requirements and denies leave, the employer must document the facts and circumstances to justify such denial and maintain such records for its own file.

Employee Notice Requirements

Notice for leave must follow reasonable notice procedures. Employers may require notice as soon as practicable after leave is commenced; employers may not require advanced notice before either EFMLA or EPSL leave is taken.

Employers may require that employees provide sufficient documentation for an employer to determine whether the requested leave is covered by the FFCRA.  The FFCRA limits what documentation employers may require from employees to substantiate the need for leave, but authorizes an employer to demand additional information established by the IRS for the employer to claim the tax credit. It is reasonable for the employer to require the employee to comply with the employer’s usual notice procedures and requirements, absent unusual circumstances. If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.

Return to Work

The regulations explain that in most instances, an employee is entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave in the same manner that an employee would be returned to work after FMLA leave. However, the new statute does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether the leave was taken. The employer must be able to demonstrate that the employee would have been laid off even if he or she had not taken leave.

Covered Private Employer Tax Credits

Covered private employers covered under the FFCRA qualify for reimbursement through refundable tax credits for all qualifying paid sick leave wages and qualifying family and medical leave wages paid to an employee who takes leave under the FFCRA, up to per diem and aggregate caps, and for allocable costs related to the maintenance of health care coverage under any group health plan while the employee is on the leave provided under the FFCRA. More information about the available tax credits can be found at the links below:

https://www.irs.gov/forms-pubs/about-form-7200

https://www.irs.gov/pub/irs-drop/n-20-21.pdf

The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP routinely advise public and private employers on compliance with state and federal employment regulations. If you have any questions about the FFCRA or any other matter, please contact us at info@fisheldowney.com or call 614.221.1216.