Updated September 1, 2020
NOTE: On August 3, 2020, a New York federal court invalidated four provisions of the U.S. Department of Labor’s regulations related to the FFCRA. The four provisions vacated by the court are the “work availability” requirement, the “health care provider” definition, employer consent for intermittent leave for childcare reasons, and the requirement that documentation supporting the need for leave be submitted before leave is taken. Our alert on this topic is here. We have updated the below alert to incorporate the court’s decision and have also updated our model FFCRA policy to reflect those changes.
This alert incorporates the guidance issued by the United States Department of Labor (DOL) on March 28, 2020, and updated on March 29, 2020, in addition to the regulations published by the DOL on April 6, 2020, other DOL FAQ updates through September 1, 2020, related to FFCRA leave, and DOL Field Assistance Bulletins issued on June 26, 2020.
We have removed the prior FFCRA alerts from the Resource Center, as this alert incorporates our earlier summaries of the regulations and guidance. We will update this alert as the DOL issues additional FFCRA regulations or guidance. Going forward, the sections of this alert that have been updated will be marked with the date our team issued the updated information so that you can keep track of the changes.
As promised, the DOL continues to issue “rolling” guidance in the form of Frequently Asked Questions (FAQs) under the Families First Coronavirus Response Act (H.R. 6201) (FFCRA or Act), signed into law on March 18, 2020. In addition, the DOL issues Temporary Regulations under the Act. The enacted federal legislation provides covered employees with two forms of paid leave—Emergency Paid Sick (EPSL) and FMLA-Public Health Emergency Leave (FMLA-PHE). The leave mandate applies only to private-sector employers with fewer than 500 employees or covered public agencies, regardless of size. The law went into effect on April 1, 2020.
On March 24, 2020, the DOL issued the first written guidance for employers and employees and published a set of FAQs, which it has updated a number of times since. These documents provide insight on various issues that employers have been grappling with related to FFCRA leaves. The DOL also has published regulations related to the FFCRA. The following information also highlights FFCRA amendments adopted with the CARES Act. Finally, the DOL has created a “FFCRA Eligibility Tool” for employees that can be found here and states that an employer tool is coming soon.
Model Policy
In addition to updating this alert with the latest information under the FFCRA, Ballard Spahr’s Labor and Employment Group continues to update its model FFCRA Leave Policy to comport with the latest information from the DOL. The latest version of the policy can be found in our COVID-19 Resource Center here. As we issue updates based on the guidance and regulations, we will attach a blacklined version at the back of the policy to highlight what has changed.
Emergency Paid Sick Leave Act (EPSL)
Covered Employers. The Act covers only certain employers—private employers with fewer than 500 employees and public agencies, regardless of size. Covered employers also include successors in interest. See 500 or Fewer Employees and Multiple Entities, below, for additional information.
Small businesses with fewer than 50 employees may be exempted from the EPSL requirements if the leave is requested “to care for the employee’s son or daughter if a school or place of care is closed, or the childcare provider is unavailable, due to COVID-19 precautions,” and imposing such requirements would jeopardize the viability of the business (see Small Business Exemption, below). In addition, an employer has discretion to exclude employees who qualify as “health care providers” or “emergency responders.” (See Health Care Provider and Emergency Responder Exclusions, below).
Covered Employees. EPSL is available for immediate use by all employees, full-time and part-time, regardless of how long the employee has worked for the employer.
Amount of Leave. Covered employers are required to provide full-time employees with 80 hours of EPSL. “Full-time” is defined as normally scheduled to work 40 hours or more per week. Any employee scheduled to work fewer than 40 hours per week is part-time and subject to a reduced entitlement. Part-time employees are entitled to EPSL at their regular rate of pay for the average number of hours that the employee works in a two-week period. (See Calculation of Leave Hours, below, for instructions on how to calculate the amount of leave for part-time employees who do not work regular hours).
EPSL does not carryover from one year to the next, nor is it paid upon separation from employment. Additionally, the DOL regulations clarify that this entitlement is for “one time use,” meaning that an employee who has used some or all of the entitlement while working for one employer is entitled only to the balance, if any, while working for any other employer.
Qualifying Reasons for Use. Employees who are unable to work or telework are eligible for EPSL for the following reasons:
- To comply with a federal, state, or local quarantine or isolation order related to COVID-19
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis
- To care for an individual who is subject to an order as described in (1) above or has been advised as described in (2) above
- To care for the employee’s son or daughter if a school or place of care is closed or the childcare provider is unavailable due to COVID-19 precautions
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor. (Note: The DHHS Secretary has not specified any such condition.)
Quarantine or Isolation. [Updated August 4, 2020] The regulations provide that for the purposes of EPSL, a quarantine or isolation order includes “shelter-in-place or stay-at-home orders issued by any federal, state, or local government authority that cause the employee to be unable to work,” even if work is otherwise available to the employee. A New York federal court has found the portion of the DOL final regulation requiring that there be actual work available for an employee to be eligible for FFCRA leave to be unlawful. The court found that an employee remains eligible for FFCRA leave if he or she otherwise has a qualifying reason for leave, even if there is a lack of work with the employer due to a shutdown or slowdown of business.
It also covers a government order that has advised categories of citizens (e.g., certain age ranges or medical conditions) to shelter in place, stay at home, isolate, or quarantine. For example, on April 1, Florida Gov. Ron DeSantis signed such an Executive Order, mandating that the following individuals stay at home and take all measures to limit the risk of exposure to COVID-19: senior citizens and individuals with a significant underlying medical condition, such as chronic lung disease, moderate-to-severe asthma, serious heart conditions, immune-compromised status, cancer, diabetes, severe obesity, renal failure, and liver disease. Further, this leave is available to an employee whose health care provider has advised the employee to self-quarantine because he or she is “particularly vulnerable to COVID-19.”
Finally, an employee cannot take EPSL when the employee self-quarantines due to illness but does not seek a medical diagnosis from a health care provider.
Caring For Individuals in Quarantine or Isolation. To qualify for leave based on caring for an “individual” in quarantine or isolation, the individual needing care must be the employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person for whom the employee would otherwise be expected to care for due to the relationship between the employee and the individual.
Health Care Providers – Quarantine Advice. Health care providers, for purposes of issuing quarantine advice for EPSL, must be licensed doctors, nurse practitioners, or other health care providers permitted to issue certification for purposes of the FMLA (i.e. the same definition as FMLA).
Pay Rate. EPSL is to be paid at the employee’s full regular rate of pay, subject to a cap of $511 per day ($5,110 in the aggregate) for the uses described in 1, 2, and 3, above. Paid sick leave for the uses described in 4, 5, and 6, above, is limited to two-thirds of the employee’s regular rate of pay, subject to a cap of $200/day ($2,000 in the aggregate). (See Pay Rate, below).
Employer Policies and Other Mandated Leave. The Act provides that it does not diminish an employee’s rights or benefits under state or local laws or an existing employer policy. An employee may first use EPSL under the Act for qualifying reasons, and an employer may not require employees to use other paid leave provided by the employer before the employee uses EPSL. An employer, however, may allow an employee to supplement EPSL with other accrued forms of paid time off. (See Existing Employer Leave Policies and Concurrent Usage, below, for more information).
Termination of Leave. EPSL ceases on the employee’s next scheduled work shift immediately following the termination of the need for such leave for a qualifying COVID-19 reason or when the employee runs out of EPSL, whichever is sooner.
Bargaining Units. The Act applies to bargaining unit employees and provides that it does not diminish any rights under a bargaining agreement. For employees in multiemployer bargaining units, the Act and DOL FAQs contain explanations for how the EPSL provisions will operate under multiemployer funds or plans.
Notice and Documentation. Once leave has commenced, an employer may require the employee to follow “reasonable” notice procedures of an employee’s need for leave in order to continue receiving EPSL. There also are specific notice and documentation requirements that apply to requests for leave, which apply to both forms of leave and are discussed below under Notice, Documentation, and Recordkeeping.
FMLA-Public Health Emergency Leave
The FFCRA contains the “Emergency Family and Medical Leave Expansion Act,” amending the FMLA to create a new category of public health emergency leave related to COVID-19. This leave is partially paid.
Covered Employers. The FMLA-PHE Leave covers private employers with fewer than 500 employees and public agencies, regardless of size. As with EPSL, there are certain exemptions for small businesses with fewer than 50 employees and for employees who qualify as “health care providers” or “emergency responders.” (See Small Business Exemption and Health Care Provider and Emergency Responder Exclusions, below).
Covered Employee. The leave benefit is available to any employee who has been employed for at least 30 calendar days. Please note that this eligibility criterion does not apply to EPSL. The CARES Act amended this provision to add a provision for eligibility of rehired employees. Under this provision, an employee will be considered employed for at least 30 calendar days, and therefore eligible for leave under FFCRA, if the employee was: (1) laid off by the employer not earlier than March 1, 2020; (2) had worked for the employer for not less than 30 of the last 60 calendar days prior to the employee’s layoff; and (3) was rehired by the employer thereafter.
12-Workweek Entitlement. Employees are entitled to a total of 12 workweeks of FMLA-PHE Leave, including the initial two weeks, which either are unpaid or may be paid if the employee has another form of leave available (e.g., EPSL). The 12-workweek entitlement is the same entitlement under an employer’s existing FMLA policy, so that employees can only use any remaining balance of their 12 weeks under the FFCRA, based on the “leave year” definition adopted by the employer. For example, if an employee has used six weeks of their FMLA entitlement already, only six weeks remain for FMLA-PHE Leave. Any FMLA-PHE Leave also counts toward the 12-workweek entitlement. An employee cannot receive more than 12 total weeks of FMLA-PHE Leave from April 1, 2020 through December 31, 2020, even if the leave crosses into a new leave year. Any prior FMLA usage does not impact the EPSL entitlement, but using EPSL after April 1 will run concurrently with two weeks of FMLA-PHE Leave.
Leave Usage. FMLA-PHE Leave applies only to employees unable to work, including telework, due to a need for leave to care for the employee’s son or daughter under 18, if the son or daughter’s school or place of child care has been closed, or the child care provider is unavailable due to a public health emergency. Public health emergency is defined to mean an emergency with respect to COVID-19 declared by federal, state, or local authority. (See Son or Daughter, below).
Paid Rate. After the first 10 days, eligible employees will be entitled to not less than two-thirds of their regular rate of pay for the number of hours that the employee would normally be scheduled to work, capped at $200/day ($10,000 in the aggregate). (See Calculation of Leave Hours and Pay Rate, below).
Relationship to Paid Leave. As noted, the first 10 days of FMLA-PHE Leave will be unpaid, unless the employee elects to substitute EPSL and/or the employer allows the employee to supplement EPSL with accrued paid time off. The DOL rules regarding concurrent usage of paid time off and FMLA-PHE seem to conflict. (See Existing Employer Leave Policies and Concurrent Usage, below).
Guidance Applicable to Both Forms of Leave
According to the regulations and FAQs, the following principles apply both to EPSL and FMLA-PHE Leave.
Under 500 Employees. The DOL clarified that the calculation of the 500-employee threshold under the FFCRA should be done “at the time your employee’s leave is to be taken.” Based on this language, an entity must determine whether it has 500 employees at the time any individual employee is to take leave under the FFCRA. For businesses hovering around the 500-employee mark and considering layoffs, be advised that the 500-employee threshold appears to be a moving target. Thus, any contemplated layoffs that would bring the number of employees below 500, could trigger FFCRA coverage. Independent contractors, employees who have been furloughed, and those outside the United States do not count. Temporary employees and those who are employed through staffing agencies do count.
Multiple Entities. [Updated May 11, 2020] Another question asked by many employers is whether all entities in the corporate family, or employees of staffing entities, are counted when determining the 500-employee threshold. The FAQs explain that two tests are relevant. Based on a revision to the FAQs on March 29, both of the tests apply to both forms of FFCRA leave.
An employer’s employee count must include all “joint employees,” if the employer meets the DOL’s newly amended joint employer test under the Fair Labor Standards Act (FLSA). The FLSA’s joint employer test was in January 2020, and the DOL issued final regulations re-defining the test, which took effect on March 16, 2020. In addition, the DOL clarified in its guidance that joint employees employed on the employer’s premises (e.g., staffing agency employees) are eligible for leave under FFCRA.
The DOL FAQs confirm that a temporary placement agency with more than 500 employees is not required to provide FFCRA leave to its employees. However, the business where an individual is placed will generally be required to provide FFCRA leave if it qualifies as a “joint employer” and if it has fewer than 500 employees. As set forth above, the FLSA joint employer test will be used to determine whether the entity is a “joint employer.” If the business the individual has been placed in provides FFCRA leave, the staffing agency is bound by the FFCRA retaliation provisions and is therefore prohibited from taking an adverse action against the individual for taking the leave.
Also, an employer comprising multiple entities could have its employee count aggregated across the entities if it meets the “integrated employer” test under the FMLA. Again, this test, like the joint employer test, applies both to determining employer coverage for EPSL and FMLA-PHE Leave. This test relies on multiple factors, including the degrees of common labor relations, management, operations, and ownership.
Coverage for “Son or Daughter.” Son or daughter is defined in the same manner as the FMLA (FMLA Fact Sheet #28B). This definition includes biological, adopted, or foster children, the employee’s stepchild, a legal ward, or a child for whom the employee is standing in loco parentis. It also includes children 18 years of older with disabilities who are incapable of self-care (FMLA Fact Sheet #28K).
Summer Child Care Closures. [Updated July 2, 2020] The DOL guidance explains that employees may not take EPSL or FMLA-PHE leave because a child’s school is closed for the summer, unless they would have been attending a summer school or other program. However, if the child’s summer care provider, such as a camp, is closed due to COVID-19, leave may be taken based on the parameters described below.
The DOL has issued a Field Assistance Bulletin (No. 2020-4) on this issue which may be found here1. The bulletin explains when employees may be entitled to FFCRA leave due to the closure of a child’s summer camp, summer enrichment program, or other summer program.
An employee generally cannot take leave based on the closure of a summer camp or program that the child has never attended, unless there is some indication that the child would have attended the camp or program had it not closed due to COVID-19. The question becomes whether there is evidence of a plan for the child to attend the camp or program or, short of a plan, whether it is more likely than not that the child would have attended the camp or program. An application to attend the camp or program or enrollment prior to the closure would satisfy the FFCRA requirements. Additionally, prior enrollment and current eligibility is likely enough to establish the camp or program as the child’s place of care. A mere interest in a camp or program is likely not enough. However, the bulletin states that there are a multitude of possible circumstances and that a one-size–fits-all analysis is not appropriate. As such, employers should be careful when denying leave and should evaluate all situations on a case-by-case basis.
The DOL explained that employees who are requesting leave due to the closure of a summer camp or other summer program must provide the same information required of individuals requesting the leave due to the closure of a school or other place of care, namely, the name of the child, the name of the camp or program, and a statement that no other suitable person is available to care for the child.
Return to School and Virtual Learning. [Updated September 1, 2020]
The DOL updated its FFCRA FAQs to address whether parents are permitted to take FFCRA leave when their child’s school operates in person but only permits students to come to school in- person on certain, assigned days. Where the school is open each day, but students alternate days between in-person attendance and virtual attendance, parents may take FFCRA leave for the days when their child is not permitted to attend school in person.
However, where a school is open for full-time, in-person learning, and a parent opts for a virtual format instead of in-person learning, FFCRA leave is not available to parents. The DOL explained that this was due to the fact that the school is not “closed” due to COVID-19 related reasons where it is open for full-time, in-person instruction.
Calculation of Leave Hours. [Updated April 23, 2020] Full-time employees are entitled to 80 hours of EPSL. Part-time employees are entitled to the amount of leave equal to their hours in a two-week period. For employees, full-time or part-time, who work irregular schedules, the following calculations should be used for determining leave entitlements under EPSL and FMLA-PHE, respectively:
EPSL
For an individual who works an irregular schedule, employers must estimate the number of hours of EPSL the employee will be entitled to under FFCRA. The estimate must be based on the average number of hours the employee was scheduled to work per calendar day (not workday) over the six-month period immediately prior to the first day of paid sick leave. This average must include all scheduled hours, including both hours actually worked and hours for which the employee took leave.
For example, if an employee worked 550 hours over the six-month look-back period of October 14, 2019, to April 13, 2020 (183 calendar days) and took 100 hours of paid leave, the employer would take 650 hours and divide that by 183 calendar days (the number of calendar days in the six-month period prior to the first day of the employee’s leave) to get the average of 3.55 hours per calendar day. This means the employee would be entitled to 49.7 hours of EPSL (3.55 hours multiplied by the 14 days for EPSL).
FMLA-PHE
In order to calculate the amount of PHE-FMLA for an individual who works an irregular schedule, the calculation is a bit different from the calculation for EPSL. The average for PHE-FMLA must be based on the number of hours the employee was scheduled to work per workday (not calendar day) divided by the number of workdays over the six-month period immediately prior to the first day of the employee’s paid expanded family and medical leave. This average must include all scheduled hours, including both hours actually worked and hours for which the employee took leave.
For example, if an employee worked 550 hours over 100 workdays in the six-month look-back period and took 100 hours of paid leave, the employer would take 650 hours and divide that by 100 workdays for a total of 6.5 hours per workday. The employer will, therefore, be required to pay the employee for 6.5 hours per workday times two-thirds the employee’s regular rate for each day of FMLA-PHE taken, subject to a $200 per day cap and $10,000 maximum.
The DOL also has issued guidance which explains that for both types of FFCRA leave, employers may round the amount of hours to which an employee is entitled as long as it is consistent for all employees and in line with employer policies and practices. For the purposes of computing hours under the FFCRA, employers may round to the nearest time increment that the employer customarily uses to track the employee’s hours worked. For instance, if the employer typically tracks work time in quarter-hour increments, the employer may round to the nearest quarter hour. However, an employer may not round to the nearest quarter hour if the employer typically tracks time in tenth-of-an-hour increments.
Overtime Hours. An employee may be entitled to FFCRA leave pay for more than 40 hours in a workweek, if the employee normally would be scheduled for more than 40 hours in a workweek, including overtime hours. The DOL offers an example under which an employee is paid 50 hours of EPSL in a single workweek. However, there is no requirement for payment of EPSL hours at a premium rate, or that the employee receive more than 80 hours total of EPSL.
Pay Rate. [Updated April 23, 2020] The DOL also clarified that the employee’s “regular rate of pay,” used for purposes of FFCRA leave, is the weighted average rate of pay over the six-month period prior to the date on which the employee takes leave. This means that the rate could change if the employee’s pay rate changes, including presumably any pay reductions triggered by the COVID-19 pandemic. Commissions, tips, or piece rates also will be included in the calculation. Employers also can compute the rate of pay by adding all compensation that is part of the regular rate and dividing by all hours actually worked in the period.
The DOL has confirmed that the six-month period used for calculating the employee’s regular rate is fixed. Even if an employee uses EPSL or PHE-FMLA intermittently or on two separate occasions, the six-month period for determining the employee’s regular rate of pay will not change and the employer will not need to recalculate the regular rate if the employee needs to take remaining FFCRA leave at a different time. The six-month period runs backward from the first day the employee takes EPSL or PHE-FMLA, whether the leave is taken continuously or not.
As noted, the pay rate for non-exempt employees under both EPSL and FMLA-PHE Leave is a six-month weighted average of the employee’s regular rate at the time leave is to be taken. This method involves determining the weekly regular rate for each week over the prior six-month period and then determining the average, weighing the workweeks based on the number of hours worked in each week. If the hours are constant across workweeks and if there are no wage supplements, such as longevity, shift differentials, or bonuses, this is a simple arithmetic average. If the hours vary, or there are additional elements of pay beyond just hourly wages, the calculation is more complicated.
The DOL has outlined the following steps to be used to calculate an employee’s regular rate when other forms of compensation, including piece rate, commissions, and tips, for example, are involved:
- First, employers must compute the employee’s non-excludable remuneration for each full workweek during the six-month period. Notably, commissions and piece- rate pay is to be included. See 29 CFR part 778. Tips, however, count only to the extent that the employer applies them towards minimum wage obligations (i.e., a tip credit). See 29 CFR part 531.60. Overtime premiums do not count towards an employee’s regular rate. Payments for taking leave are not included in the calculation of the regular rate.
- Second, employers must compute the number of hours the employee actually worked for each full workweek during the six-month period. Again, payments for taking leave are not included in the calculation of the regular rate.
- Third, the employer should then divide the sum of all non-excludable remuneration received over the aforementioned six-month period by the sum of all countable hours worked in that same time period.
Employers should be careful in calculating the employee’s regular rate because a miscalculation could impact the tax credits received for the leave payments by the employer.
Intermittent Leave. [Updated August 4, 2020] The DOL has stated that if an employee uses part of their EPSL entitlement for one reason, returns to work, and then needs the balance for another reason, it must be available to the employee, suggesting that two continuous blocks of EPSL (in no less than full day increments) are allowed if for separate reasons. The DOL did not discuss whether FMLA-PHE Leave could be used in the same way.
Unless an employee is teleworking, once the employee begins taking leave for an EPSL-qualifying reason, the employee must continue to take the EPSL until the employee either (1) uses the full amount of paid sick leave, or (2) no longer has a qualifying reason for taking paid sick leave.
Based on a recent decision of a New York federal court declaring part of the DOL’s final rule invalid, if an employee is not teleworking, employers must permit employees to take either EPSL or FMLA-PHE Leave intermittently to care for their child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons.
Existing Employer Leave Policies and Concurrent Usage. An employee may elect to use the two weeks of EPSL before any other form of paid leave. Employers cannot require employees to use other forms of paid leave first.
The situation may be different for the 12 workweeks available for FMLA-PHE Leave. The DOL regulations incorporated the FMLA’s “concurrent usage” rule, such that employers can require, or employees may elect, concurrent usage of paid time off with FMLA-PHE Leave, in which case the employee must be paid full pay for each day of such concurrent usage. This includes accrued paid vacation leave, personal leave, or family leave. Payroll tax credits, however, would apply only to the FFCRA-mandated portion of the pay, i.e. two-thirds of the regular rate up to $200 a day. (See Tax Credits, below).
Even though the regulations, in one place, purport to adopt the “concurrent usage” rule, there are other places in the regulations that expressly reject this rule, creating a conflict. Employers are awaiting further clarification from the DOL on this issue.
The DOL will allow employers, in response to the FFCRA, to change their paid time-off policies prospectively, including terminating or modifying any voluntary paid leave policy on or after April 1, 2020. This would not apply to paid time-off under state or local laws or pursuant to collective bargaining agreements (absent bargaining a change).
Paid Leave Prior to April 1, 2020. The DOL clarified that FFCRA leave is not retroactive. As a result, any paid leave given to employees prior to the effective date of the FFCRA (April 1, 2020), which would otherwise have qualified under the FFCRA leave provisions, will not be counted toward the leave requirements under FFCRA. As such, employees will be entitled to their full entitlement of FFCRA leave as of April 1, 2020.
Simultaneous Leave by Both Parents. An employer must only permit EPSL or FMLA-PHE to be taken for the purpose of caring for a child whose school or place of care is closed or unavailable, if the employee is actually needed to care for the child. Generally, employees do not need to take such leave if a co-parent, co-guardian, or usual childcare provider is available to provide the care the child needs, suggesting that both parents working for the same employer would not qualify for FFCRA leave together.
FLSA Exempt Status. The DOL regulations clarify that taking EPSL or FMLA-PHE Leave does not impact an employee’s status or eligibility for any FLSA exemption. This includes permissible intermittent usage which could result in a reduction of the weekly salary.
Domestic Service Workers. [Updated May 11, 2020] The DOL guidance provides that individuals or entities who have domestic workers completing work, including but not limited to landscapers, housekeepers, and individuals providing child care, must provide FFCRA leave if they are employers under the FLSA. Generally, if the domestic service worker is economically dependent on the individual or entity for the opportunity to work, they will be considered an employer under the FLSA and will need to provide those domestic workers with leave under the FFCRA assuming all other conditions are met.
Employees Out of Work Due To Workplace Injuries, Disability, or Other Leaves of Absence. Generally, employees who were not able to return to work are not eligible for leave under FFCRA. If an employee would have been able to return to work (for instance, in a light duty capacity from a workers’ compensation leave or from a voluntary leave of absence), the employee will be eligible for leave under FFCRA.
Return to Work. Employees have the right to return to the same or equivalent job after using FFCRA leave. However, employees are not protected from employment actions, such as layoffs, that would have affected them whether or not they were using leave under FFCRA. This includes layoffs due to workplace closures.
The “key employee” exception for return to work rights applies only to FMLA-PHE Leave, as does the exception for employers with fewer than 25 employees, when certain conditions are met, such as the position no longer exists due to economic conditions or change in operating conditions of the employer caused by COVID-19.
Layoffs and Furloughs. The DOL clarified common questions as they relate to employees who have been or may be laid off or furloughed.
The DOL explained that, if an employer closed its worksite (either before or after April 1, 2020) but prior to the employee requesting leave under FFCRA, the employee is not entitled to leave under FFCRA. Moreover, the FAQs state that if the employer closes its worksite during a time when an employee is on leave provided under FFCRA, the employee will no longer be eligible for FFCRA. Further, in the case of a furlough, an employee will not be entitled to leave under FFCRA, even if the employer remains in operation. Finally, if an employer reduces an employee’s hours, the employee may not use leave under FFCRA to supplement the hours the employee is no longer scheduled to work.
In most, if not all, of the above cases, an employee likely will become eligible for unemployment compensation under applicable state and federal law (as expanded under the CARES Act).
Notice, Documentation, and Recordkeeping
Notice of Employee’s Request for Leave. [Updated August 4, 2020] For EPSL and FMLA-PHE related to childcare, the employee must provide notice of the need for leave as soon as practicable. For all other EPSL reasons, employees are encouraged to notify employers of the need for leave as soon as practical, but employers may only require the employee to follow reasonable call-out procedures after the first workday (or portion thereof) for which an employee receives EPSL leave.
Oral statements will suffice if they contain sufficient information for the employer to determine whether the requested leave is covered by FFCRA, but any oral statements must be documented by the employer and maintained pursuant to recordkeeping requirements noted below. For this reason, it is suggested that employers develop an FFCRA Leave Request and Certification Form. Ballard Spahr offers a sample form, updated to reflect the latest information from the DOL, in our COVID-19 Resource Center.
An employer may deny an employee’s request for leave for failure to provide proper notice, but should first give the employee notice of the failure and an opportunity to provide the required documentation. Leave also may be denied for failure to provide required documentation to substantiate the leave reasons (discussed below).
Documentation Supporting Need for Leave. [Updated May 11, 2020] Documentation should include the employee’s name, dates for which leave is requested, qualifying reason for leave, and an oral or written statement that the employee is unable to work or telework, because of the qualifying reason. In addition, the regulations specify certain forms of required documentation based on the reason for leave. In each instance, the information may be provided by the employee and does not require any further certification, such as by a health care provider:
- For leave requested due to employee having COVID-19 symptoms and seeking a medical diagnosis—employer can only require that an individual identify his or her symptoms and a date for a test or doctor’s appointment when they are seeking EPSL due to having COVID-19 symptoms and seeking a medical diagnosis. Further documentation may not be required in that situation.
- For leave requested pursuant to an order to isolate or quarantine—identify the government entity that issued the order.
- For leave based on advice of a health care provider to self-quarantine—the name of the health care provider and, if the leave is to another individual, the identity of and relation to the individual.
Although not mentioned in the documentation rules, the DOL regulations define an “individual” as someone with whom the employee must have a personal relationship. Examples: an immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation the employee would care for that person, if quarantined.
- For leave due to a school closure or unavailability of childcare—(1) the name of the child; (2) the name of the school, place of care, or childcare provider that closed or is unavailable due to COVID-19; and (3) a statement that no other suitable person is available to care for the child during the period of requested leave.
In addition, under IRS guidance issued on the same date as the DOL regulations, an employer can require that, if a child is over the age of 14 and care is during daylight hours, the employee provide a statement of “special circumstances” requiring the employee to provide care. The DOL FAQs incorporate by reference the IRS guidance.
With regard to employees who request FFCRA leave after having been remote working for a period of time, employers may request the employee note any changed circumstances as part of his or her explanation of the need for leave, but should be cautious in doing so where it may later be used as evidence that the employer denied leave based upon the information gathered. The guidance explains that an employee situation could change in that he or she may not have needed leave for school closure purposes but may now need to take leave for that reason.
As noted above, if information needed to support a request for tax credits is not provided by the employee, even after being notified and failing to cure the deficiency, the employer is not required to provide paid leave under the FFCRA.
Recordkeeping. Under DOL regulations and IRS guidance, an employer must retain all documentation pertaining to EPSL and FMLA-PHE Leave for four years after the date on which the tax becomes due or is paid, whichever comes later. Documentation must be available for IRS review. This recordkeeping requirement includes the authorized officer’s determination and supporting documents, that the employer is eligible for a small business exemption (fewer than 50 employees), and specified records to support the employer’s claim for tax credits. As mentioned above, employers are required to memorialize oral statements provided by employees, such as a request for leave or statement supporting the need for leave, which becomes part of the required records.
Exclusions: Health Care Providers and Emergency Responders
[Updated August 4, 2020] The DOL has clarified that employers may decide to exempt health care providers or emergency responders from the FFCRA leave for one reason but not others. For example, an employer may decide to exempt the below employees from leave for caring for a family member, but chose to provide them paid sick leave in the case of their own COVID-19 illness.
Health Care Providers – Exclusion. "Health care provider," for purposes of exclusion from FFCRA leave entitlements, initially had a much broader definition than anticipated. It included both a wide variety of health care positions, as well as others employed by institutions such as doctor’s offices, hospitals, health care centers, etc. However, a New York federal court has struck down the DOL’s expansive definition of “health care provider,” finding that it unduly restricts benefits to workers intended to be covered by the FFCRA’s benefits. The court explained that the DOL’s rationale cannot supersede the FFCRA’s unambiguous terms, which required the Secretary of the DOL to determine that the employee is “capable of furnishing healthcare services” when designating who an employer may exclude from benefits. The focus should not hinge on the employer’s identity as a health care provider. Consequently, employers should not apply the Final Rule’s definition of “health care provider” to deny FFCRA benefits to certain classes of employees, but should instead consult legal counsel and be guided by the FMLA’s definition, which is essentially limited to a doctor or someone capable of providing health care services.
Emergency Responders – Exclusion. “Emergency responder” also is broadly defined. In addition to law enforcement, firefighters, EMTs, physicians, and nurses, it includes military or National Guard as well as child welfare workers and service providers. It is worth noting that there is the potential for interplay of military leaves under USERRA and FFCRA leave.
Public Sector Application
FFCRA leave applies to most public sector employers, subject to exceptions for employees who are “health care providers” or “emergency responders.” Additionally, the Office of Management and Budget has the authority to exclude some other categories of U.S. Government Executive Branch employees from taking certain kinds of paid sick leave. Finally, most federal government employees are not covered by the FMLA-PHE Leave.
Small Business Exemption (including Religious and Non-Profits)
The DOL published three specific criteria for the small business exemption: (a) the employer employs fewer than 50 employees; (b) leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and (c) an “authorized officer” of the business has determined that providing the paid leave would jeopardize the viability of the business as a going concern. This can include a hardship related to providing the leave to a specific employee or providing the leave generally, depending on the circumstances. This can result in granting leave to some employees, but denying it to others based on the financial impact. Although the small business must document the determination, there is no requirement that the employer send this documentation to the DOL. No particular form of documentation is required, as long as the documentation establishes one of the requisite bases for exemption.
Enforcement
[Updated April 23, 2020] The Act, a violation of which is deemed a violation of the FLSA, contains anti-discrimination and non-retaliation provisions, and penalties for non-compliance. The DOL previously indicated that enforcement would begin on April 18, 2020.
Payroll Tax Credits
The FFCRA contains tax credits for employers and self-employed individuals (described in more detail in our alert here). Employer payroll tax credits cover the cost of granting the leave, as well as payment of health care premiums during the leave. Likewise, employees will not have payroll taxes withheld from such FFCRA leave. As described by the House Ways and Means Committee, the tax credit provisions are intended to “get money out the door quickly.”
However, the DOL did clarify that employers would not receive a tax credit for amounts they pay over and above the required payment amounts set forth in the FFCRA leave provisions. For example, if an employer voluntarily supplements the benefits provided under the FFCRA leave provisions so that its employees receive their full compensation, the employer will not be permitted to take a tax credit for the amounts paid over that which the FFCRA requires.
Employer Preparedness
Employers should prepare an FFCRA Leave Policy to address COVID-19 related absences. See our model policy here. Ballard Spahr’s Labor and Employment Group is available to assist with compliance questions and practical advice about managing the COVID-19 crisis in the workplace.
1: On the same date, in a development unrelated to the FFCRA, the DOL also issued a Field Assistance Bulletin regarding child labor laws which explains that schools will generally be considered “in session” for the purpose of those laws if they require students to participate in virtual or distance learning but will not be considered “in session” if they do not require virtual or distance learning. That bulletin can be found here.
