As you are aware, the Families First Coronavirus Response Act (“FFCRA”) became effective April 1, 2020. On April 6, 2020, the Secretary of Labor promulgated temporary regulations to clarify and implement the emergency leave provisions of the FFCRA (see 29 CFR Part 826). Of particular interest from the temporary regulations are the following:
- Differences between the Emergency Family and Medical Leave Act (“EFMLA”) and the Family and Medical Leave Act (“FMLA): EFMLA expires on December 31, 2020, while FMLA has no expiration date. EFMLA applies to all employers with fewer than 500 employees (including employers with less than 50 employees), while FMLA generally does not apply to employers with fewer than 50 employees. Employers may exempt health care providers and emergency responders from EFMLA, but not from FMLA.
- Private employers with fewer than 50 employees can deny EPSL and EFMLA in limited circumstances: A small, private employer is exempt from providing EPSL and EFMLA to care for the employee’s child whose school or place of care is closed and/or unavailable, 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 a minimal capacity; 2) the absence of the employee(s) 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 of the employee(s) requesting leave provide, and those labor or services are needed for the small employer to operate at minimal capacity. For these reasons, the employer may deny the leave only to those otherwise eligible employees whose absence would cause the employer’s expense and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity. This contingency is limited to the “childcare” provisions of FFCRA, and small employers cannot deny EPSL when it is based on the other stated reasons.
- Small private employers must maintain documentation of denial: If an employer with fewer than 50 employee denies the leave (as described immediately above), the small employer must document the facts and circumstances that meet the criteria to justify denial, but is not required to send the documentation to the U.S. Department of Labor (“DOL”). Instead, the employer should retain these records, in their own files, for at least 4 years.
- Use of personal time off (PTO) under EFMLA: An eligible employee may elect to use, or an employer may require that an employee use, their EFMLA leave concurrently with any leave offered under the employer’s leave policies (i.e., PTO, vacation lave, or sick leave).
- Intermittent leave is generally permitted: If the employer and employee agree, the EFMLA and EPSL may be taken intermittently. The agreement need not be in writing, but the parties must have a clear and mutual understanding about the parameters. Intermittent leave may be taken even if the employee is otherwise teleworking.
- However, intermittent use of EPSL is prohibited if the employee is exposed to COVID-19 and must report to a worksite: If emergency leave is sought because the employee 1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; 2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 3) is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis; 4) is caring for an individual who is either subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or 5) is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services, an employee who reports to a worksite is prohibited from taking EPSL on an intermittent basis. When leave is taken for these reasons, the employee has a high risk of sickness related to (or exposure to) COVID-19 and should not risk reporting to work.
- Parameters of “telework:” The paid leave provisions of FFCRA apply to employees who are unable to work or “telework.” Telework means no less work than if it were performed at the worksite. Employees must record and be compensated for all hours actually worked during telework. An employer is not required to compensate employees for unreported hours worked while teleworking, unless the employer knew or should have known about the telework.
- Definition of “son” and “daughter” for FFCRA purposes: FFCRA includes leave for an employee who is unable to work because they must care for a son or daughter whose school, place of care, or childcare provider is unavailable due to the COVID-19 public health emergency. “Son” or “daughter” includes children under age 18 years of age and children age 18 or older who are incapable of self-care because of a mental or physical disability.
- “Childcare Provider” expanded: FFCRA includes leave for an employee who is unable to work because they must care for a son or daughter whose school, place of care, or childcare provider is unavailable due to the COVID-19 public health emergency. In addition to providers who receive compensation for providing child care on a regular basis (and are licensed and regulated under State Law), “childcare provider” can also include an unpaid family member or friend who regularly cares for the employee’s child.
- Impact of local quarantine or isolation orders: The first qualifying reason for EPSL is when an employee is unable to work because he or she is subject to a Federal, State, or local COVID-19 quarantine or isolation order. Quarantine or isolation order includes when a Federal, State, or local government authority has advised categories of citizens (e.g. of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing these categories of employees to be unable to work.
- Self-quarantine, explained: The second qualifying reason for EPSL is when an employee is unable to work because he or she has been advised by a health care provider to self-quarantine for a COVID-19 reason. The advice to self-quarantine must be based upon a health care provider’s belief that the employee either 1) has or may have COVID-19 or 2) is particularly vulnerable to COVID-19. In order to qualify under this category, the self-quarantining must prevent the employee from working or teleworking.
- Seeking a medical diagnosis, explained: The third qualifying reason for EPSL is when an employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis. The triggering symptoms are fever, dry cough, shortness of breath, or other symptoms identified by the U.S. Center for Disease Control (“CDC”). Leave taken for this reason is limited to the time the employee is unable to work because he/she is taking affirmative steps to obtain a diagnosis.
- Requests for leave to care for a child: An employee requesting to take EPSL (under category 5) or EFMLA to care for his or her child must provide 1) the name of the child being cared for; 2) the name of the school, place of care, or childcare provider that closed or became unavailable due to COVID-19 reasons; and 3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
- Two-parent households: Generally, an employee does not need to take emergency leave if another suitable individual (co-parent, co-guardian, or usual childcare provider) is available to provide the necessary care. An employee’s request for EPSL and/or EFMLA must include a statement representing that no other suitable person is available to care for the child during the period of the requested leave. However, there is no mechanism for an employer to verify the availability of another co-parent.
- Who qualifies as a “Health Care Provider:” This category includes any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency, including not only medical professionals, but also workers necessary to keep hospitals and health care facilities supplied and operational, workers involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat COVID-19.
- Who qualifies as an “Emergency Responder:” This category includes those who 1) interact with and aid individuals with physical or mental health issues; 2) ensure the welfare and safety of our communities and Nation; 3) have specialized training relevant to emergency response; and, 4) provide essential services relevant to the public’s health and well-being.
- Health care coverage: An employee who takes EFMLA is entitled to continued coverage under the employer’s group health plan and on the same terms as if the employee did not take leave. Employees in a group health plan who take EPSL or EFMLA are responsible for paying the same portion of the plan premium that the employee paid prior to taking such leave. If the premiums are adjusted, the employee is required to pay the new employee premium contribution on the same terms as other employees.
- Tax reimbursements for private employers: Private (not public) employers qualify for reimbursement through refundable tax credits from the Dept. of Treasury, for all qualifying wages paid under the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Act (EFMLA).
- Layoffs are permitted. FFCRA does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether or not the leave was taken. The employer, however, must demonstrate that the employee would have been laid off even if he or she had not taken the leave.
- Keep FFCRA records for 4 years: An employer is required to retain all documentation provided pursuant to FFCRA for 4 years, regardless of whether or not the leave was granted or denied. If the employee provided oral statements to support his/her request for leave, the employer must document and retain such information for 4 years.
The information contained in this document does not constitute legal advice. If you have questions about the matters discussed, please feel free to contact any of our labor and employment lawyers.
