DOL issues rules on paid leave under FFCRA

On April 1, 2020, the U.S. Department of Labor (DOL) announced new regulations interpreting the paid leave provisions of the Families First Coronavirus Response Act (FFCRA), on which we previously reported. The rules provide further guidance on eligibility for the 2 weeks of emergency paid sick leave (EPSL) for six specified reasons and the 12 weeks of emergency/expanded family and medical leave (EFMLA) to care for the employee’s child whose school or place of care has closed or is unavailable. (For EFMLA, the first 2 weeks are unpaid and the next 10 weeks are paid.) Some of the key provisions include:
 
Quarantine or isolation orders: The DOL provides a very broad interpretation of the first category of EPSL leave, which is available when an employee “is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.” Surprisingly, the DOL says this category of leave “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 those categories of Employees to be unable to work even though their Employers have work for them.”
 
Advice by a health care provider to self-quarantine: For employees taking EPSL because they were advised by a health care provider to self-quarantine, the DOL has said the term “health care provider” has the same meaning as under the Family and Medical Leave Act (FMLA), which defines the term broadly.
 
Seeking a medical diagnosis: For the category of EPSL in which the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis from a health care provider, the DOL explains the leave is “limited to time the Employee is unable to work because the Employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment” because “the Employee is experiencing any of the following symptoms: fever; dry cough; shortness of breath; or any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention” (CDC).
 
Caring for an individual: For the category of EPSL in which the employee is caring for an individual who is subject to a quarantine or isolation order or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, the individual must be the employee’s immediate family member, a member of the employee’s household, or a similar individual with a personal relationship to the employee.
 
Care for employee’s child whose school or place of care has closed or is unavailable: This type of leave is available only if no other suitable person is available to care for the employee’s child during the period of such leave. (So, if someone else is available to provide care, an employer wouldn’t have to grant leave to the parent.)
 
Eligibility for EFMLA: An employee must have been on the payroll for 30 days prior to the need for leave, except in certain layoff situations. If the employee was laid off or terminated on or after March 1, 2020, and later recalled or rehired, the employee is eligible if the employee was on the payroll for 30 or more of the 60 calendar days before the date of the layoff or termination.
 
Small business exemption: The DOL says businesses with fewer than 50 employees may deny EPSL and EFMLA to an employee if providing leave to that individual would jeopardize the viability of the business as a going concern. The company must still display the FFCRA poster, however. To take advantage of this exemption, a company representative must determine and document that one of the following is true:

• The leave would “result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;”
• The leave would “entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities;” or
• There aren’t “sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided” by the employee and the employer needs these labor or services to operate at minimal capacity.

Amount of EFMLA: Employees can take a maximum of 12 workweeks of EFMLA during the period in which leave is available (April 1, 2020 to December 31, 2020), even if that period spans two 12-month FMLA leave years (as defined by the employer). Also, EFMLA counts against an employee’s 12-week entitlement to FMLA for traditional FMLA-qualifying reasons during the employer’s normal 12-month leave year, and vice versa. If the employee has already used 12 weeks of regular FMLA during the leave year defined by the employer, then no EFMLA leave is available in that leave year.
 
Supplemental paid leave: You may agree with an employee to have other types of paid leave (such as PTO or vacation) supplement the 2/3 pay available under the EFMLA if permitted by state or federal law. The DOL didn’t address whether it’s acceptable to allow supplemental pay for the types of EPSL leave that provide only 2/3 pay.

Notice of the need for leave: You may require employees to follow reasonable notice procedures for the use of EPSL for reasons other than school/daycare closure. Employees may provide notice “after the first workday” they need the leave. For school/daycare closures due to COVID-19, employees must give notice as soon as practicable. If an employee fails to give proper notice, you should inform the employee and give them an opportunity to provide the required documentation before you deny a leave request. (See our accompanying article on the newly released IRS guidance for details on required documentation.)

Denial of reinstatement at businesses with fewer than 25 employees: The DOL provides further guidance on the limited circumstances in which very small employers may deny reinstatement to an employee returning from EFMLA leave.

One time use of EPSL: An employee cannot take more than a total of 80 hours of EPSL during the entire period of April 1, 2020, through December 31, 2020, even if they change employers.

Tips: The DOL has extended until April 10, 2020, its effort to solicit feedback on its rules and guidance on the FFCRA. The new rules cleared up some questions but some still remain. Also, this morning the DOL further beefed up its FFCRA FAQs by publishing questions #60 through 79. The new FAQs don’t offer any surprises (they’re consistent with the newly released regulations) but we recommend skimming through them anyway to familiarize yourself with the DOL’s position at this time. For any specific situations, contact your Vigilant Law Group employment attorney.