You Still Have Questions? The DOL Has More Answers

The U.S. Department of Labor issued a 124-page document full of regulations for the Families First Coronavirus Relief Act (FFCRA) and the paid leave programs that just became law on April 1, 2020. We have pulled out the answers to some of the most common questions we have been getting from employers.

How Do Shelter-In-Place And Shutdown Orders Impact Leave?

The first qualifying reason for leave under the Emergency Paid Sick Leave Act (EPSLA) is if the employee is “subject to a Federal, State or local quarantine or isolation order.” Employers have been frustrated when trying to determine whether an employee fits in this category if the Employer is covered by a “shelter-in-place” or similar shutdown order issued by a state or local government (something that is becoming increasingly common).

The new DOL rule states that a quarantine or isolation order broadly includes “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders” that cause the employee to be unable to work even though the employer has work for them. The DOL states that this also includes when such orders advise categories of citizens (such as citizens of certain age ranges or of certain medical conditions) to shelter in place or stay at home. Importantly, the DOL states that an employee may take Emergency

Paid Sick Leave for this reason only if, “but for being subject to the order,” the employee would be able to perform work that is otherwise available.

By contrast, an employee subject to a quarantine or isolation order may not take Emergency Paid Sick Leave where the employer does not have work for the employee as a result of the order or other circumstances. This is because the employee would be unable to work even if they were not required to comply with the quarantine or isolation order. The key question in this analysis comes down to “whether the employee would be able to work or telework ‘but for’ being required to comply with a quarantine or isolation order.” For many employees currently unable to work because their place of employment has closed – even as the direct or indirect result of a shutdown order – this DOL rule means they will not be eligible for Emergency Paid Sick Leave under this qualifying reason.

See Georgia Governor’s Back-To-Business Order

Who Are the Health Care Providers Who Can Be Exempted?

The FFCRA allows an employer to elect to exclude Health Care Providers and Emergency Responders from receiving paid leave. The new rule provides the definition and explanation of which employees fall under this exemption.

“Health Care Provider” includes:

• Anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider;
• Any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity;
• Any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions referenced above;
• Any individual employed by an entity that contracts with any of the institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility;
• Anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; and
• Any individual that the highest official of a State or territory, including the District of Columbia, determines is a health care provider necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.

The new rule emphasizes that this definition applies only for the purpose of determining whether an employer may elect to exclude an employee from taking paid leave under the FFCRA. For all other purposes, including identifying health care providers who may advise an employee to self-quarantine for COVID-19 related reasons, the much more limited FMLA definition of health care provider should be used.

What type of Documentation Can Be Required?

The DOL’s new rule goes beyond its previous question-and-answer guidance and clarifies what records employers may request from employees and are required to keep under the FFCRA. Documentation supporting an employee’s request for paid leave must include an employee’s signed statement with: (1) the employee’s name; (2) the date(s) the employee is requesting leave; (3) the COVID-19 qualifying reason for leave; and (4) a statement that the employee is unable to work or telework because of the COVID-19 qualifying reason.

Depending on the COVID-19 qualifying reason for leave, additional documentation may be required. An employee requesting EPSL due to a federal, state or local quarantine or isolation order related to COVID-19 must provide the name of the government entity that issued the quarantine or isolate order governing that employee. An employee requesting leave due to a health care provider advising self-quarantine due to COVID-19 concerns must provide the name of the healthcare provider who advised the self-quarantine.

An employee requesting leave to care for an individual subject to a quarantine or isolation order, or advised by a health care provider to self-quarantine, must provide either (1) the government entity that issued the quarantine or isolation order the employee is subject to or (2) the name of the health care provider who advised the self-quarantine. An employee requesting to take leave to care for a child due to a school or child care closures, or unavailability of child care due to a public health emergency, must provide the following: (1) the name of the child; (2) the name of the school, place of care, or child care provider that closed or became unavailable; and (3) a statement representing that no other suitable person is available to care for the child during the period of the requested leave.

Finally, normal FMLA certification requirements still apply for leave taken for an employee’s own serious health condition related to COVID-19, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, under the FMLA.

What Are the Rules On Intermittent Leave?

Employees who seek to take leave under the FFCRA intermittently must come to an agreement with their employer regarding intermittent leave, including the increments of time in which the leave may be taken. Without such an agreement, no leave under the FFCRA may be taken intermittently. While not required, we strongly recommend you reduce the agreement to writing.

With employees who are teleworking, the employee may ask for intermittent leave for any qualifying reason. There is “broad flexibility” for employers and teleworking employees in reaching their agreements as employees who telework do not present a risk of spreading COVID-19 to their fellow employees.

For worksite employees, employees cannot take intermittent emergency paid sick leave if the leave is 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 either is 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 condition specified by the Secretary of Health and Human Services.

The rationale behind this prohibition is “the employee is, may be, or is reasonably likely to become, sick with COVID-19, or is exposed to someone who is, may be, or is reasonably likely to become, sick with COVID-19.” With the employer’s agreement, a worksite employee “may take up to the entire portion of EPSL or EFMLA Leave intermittently to care for the Employee’s Son or Daughter whose School or Place of Care is closed, or Child Care Provider is unavailable, because of reasons related to COVID-19.”

What is An Employee’s Regular Rate Of Pay?

The “regular rate” under the FFCRA applies typical Fair Labor Standards Act (FLSA) principles, but in a slightly different context – since it amounts to pay for hours not worked. Where an employee is paid an hourly rate or salary, works a fixed schedule, and earns no other pay, then the calculation is fairly simple. Where an employee’s compensation and/or hours vary from workweek to workweek, however, the regular rate requires a calculation each workweek. The Act does not say which workweek should be used. The DOL has said it would not be appropriate to use the workweek in which the employee takes leave. Instead, the regular rate should be representative of the employee’s regular rate from week to week. This should be calculated using an average weighted by the number of hours worked each workweek. Specifically, the employer must look at each preceding, full workweek that the employee has been employed during the six-month period ending on the date on which the leave is taken.

What Effect Does This Leave Have On Other FMLA OR Paid Sick Leave?

The new DOL rule confirms the statutory language and previous DOL guidance regarding the interaction of the new leave requirements with existing leave laws or employer policies. With respect to emergency paid sick leave, the DOL rule confirms that emergency paid sick leave is “in addition to,” and not a substitute for, other sources of leave which the employee has already accrued, was already entitled to, or had already used, before the law became effective on April 1, 2020. However, an employee is not entitled to retroactive reimbursement or financial compensation for any leave taken prior to April 1, 2020, even if such leave was taken for COVID-19 related reasons. 

With respect to how Emergency FMLA leave interacts with traditional FMLA leave for FMLA-covered employees, the DOL rule confirms that, rather than create an additional and new 12-week leave entitlement, the EFMLA adds a sixth reason to take the 12-week entitlement under the FMLA (specifically, to care for a son or daughter whose school or place of care is closed or child care provider is unavailable due to COVID-19 related reasons). Therefore, an employee’s ability to take EFMLA leave may depend on their use of traditional FMLA leave during the 12-month FMLA leave year. If an employee has already taken such leave, the employee may not be able to take the full 12 weeks of leave under the EFMLA.

What More Information Has Been Provided for Employers With Fewer than 50 Employees?

A new development announced in the rule provides a partial carve out for the smallest businesses in the country. Employers with fewer than 50 employees will not have to provide EPSL or EFMLA to employees who need to care for their son or daughter whose school or place of care is closed, or child care provider is unavailable for COVID-19 related reasons, if one of three factors exist:

• doing so would raise expenses and financial obligations above available business revenue such that the employer would cease operating at a minimal capacity; or
• the requesting worker’s absence would pose a substantial risk to the employer’s financial health or operations because of their specialized skills, knowledge of the business, or responsibilities; or
• the employer can’t find enough able, willing, available, and qualified workers to perform the work of the employee requesting an absence.

In such cases, the rule notes that employers must document the facts and circumstances that justify the denial and retain those records for its own files (not to be submitted to the DOL).

The DOL has indicated that it won’t enforce the rule for employers operating in “good faith” until April 18. While employers shouldn’t use this several-week period as an excuse not to diligently understand and comply with the new law, this provision serves as a welcome bit of breathing room as you digest and apply the many new principles involved.

Should you have any questions regarding this new rule, please contact one of our attorneys at 404.844.4130.