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DOL Regulations Concerning the Families First Coronavirus Response Act

 On April 1, 2020, the Families First Coronavirus Response Act (“FFCRA”) went into effect.  Since then, the Department of Labor (“DOL”) has issued temporary regulations to effectuate the FFCRA, including regulations pertaining to the Emergency Paid Sick Leave Act (“EPSLA”) and Expanded Family and Medical Leave Expansion Act (“EFMLEA”).  The regulations formally implement major topics previously addressed in the DOL’s Q&As that were issued in March, available at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.  

The DOL regulations expand on multiple new aspects of the FFCRA.  This guide provides an overview of the most recent updates provided by the DOL: 

Paid Sick Leave

  • An employee can only take paid sick leave subject to quarantine or isolation order if the employer has work for the employee and the quarantine or isolation order prevents the employee from performing the work. However, employees can still be eligible for paid sick leave if there is a stay-at-home or shelter-in-place order that applies to the employee, that is limited to a particular category of people, or if the order does not impact the operations of the employer. 
  • An employee can take paid sick leave based on the advice of a health care provider to self-quarantine only if the employee is unable to work because a health care provider advises the employee to self-quarantine because the employee may have, or be particularly vulnerable to, COVID-19.
  • An employee exhibiting symptoms of COVID-19 identified by the CDC (including dry cough, fever, and/or shortness of breath) may take paid sick leave under the EPSLA. Such employee’s paid sick leave time is to be limited to time the employee “is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.”
  • If an employee is taking paid sick leave to take care of another individual, “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 was self-quarantines or was quarantined.”
  • An employee may take leave under both the EPSLA and the FMLEA to take care of his or her child when a childcare provider is unavailable due to COVID-19. Even if the child’s usual caretaker is a family member or family friend who regularly cares for the child, in the event that such caretaker is unavailable due to COVID-19, the employee will be able to take leave under both provisions.
  • An employee may take leave under the EPSLA or the FMLEA to take care of a child who is home due to the child’s school or childcare provider closing because of COVID-19 only if there is no other suitable caretaker available to watch the child.
  • Employers may exclude healthcare providers and/or emergency responders from paid sick leave. 

Emergency FMLA Leave

  • Emergency FMLA leave is only available to care for a son or daughter whose school or childcare provider has closed or become unavailable due to COVID-19.
  • An employee may take a maximum of 12 weeks of FMLA leave under the FFCRA between April 1, 2020 and December 21, 2020. Even if an employee changes employers, it may not take more than 12 weeks of FMLA leave during this time period.
  • The first two weeks are unpaid.
  • In the first two weeks of FMLA leave which are otherwise unpaid, the employee may choose or the employer may require an employee to use other accrued paid leave for such time. If an employee chooses to use emergency paid sick leave for this time, an employer may not require the employee to first use other accrued paid leave.
  • Employers may exclude healthcare providers and/or emergency responders from emergency FMLA leave. 

Intermittent Leave

An employer may permit teleworking employees or employees taking leave to care for a child to take intermittent leave for qualified reasons if the employee and employer agree.  However, employers are not required to grant requests for intermittent leave.  Employees who are not teleworking may not take intermittent leave if taking paid sick leave for any reason other than to care for a child out of concerns regarding the spread of COVID-19. 

Teleworking

“Telework” means work the employer permits or allows an employee to perform while the employee is at home or at a location other than the employee’s normal workplace.  An employee is able to telework if: (1) the employer has work for the employee, (2) the employer permits the employee to work from the employee’s location, and (3) there are no extenuating circumstances (like COVID-19 symptoms) that prevent the employee from performing his or her work.  Telework can be performed at normal business hours or at other agreed-upon times.  Teleworking employees must be compensated for all hours actually worked as required by applicable law.  Telework is not compensated as paid leave under the EPSLA or the EFMLEA.  

Documentation Requirements

An employer may not require an employee to provide more information in his or her leave request than is provided by the DOL regulations.  The DOL regulations provide that an employer may require an employee to provide the following:

  • The employee’s name
  • The dates of requested leave
  • The qualified reason for the requested leave
  • A statement that the employee is unable to work due to such qualified reason
  • If the employee is requesting leave based on a quarantine or isolation order, the name of the government entity that issued the quarantine or isolation order
  • If the employee is requesting leave based on the recommendation of a health care provider to quarantine or self-isolate, the name of the health care provider
  • If the employee is requesting leave to take care of a son or daughter, the name of the son or daughter being cared for, the name of the school, place of care, or childcare provider that has either closed or become unavailable due to coronavirus, and a representation that no other suitable caretaker will be taking care of the employee’s son or daughter during the requested period of leave
  • Any other material an employer might need in order to support a request for tax credits 

Small Business Exception

If an employer believes it qualifies for the small business exception because it has fewer than 50 employees, it may apply to the DOL for an exemption from the FFCRA.  However, such exempt employers are only exempt from providing paid sick leave and emergency FMLA leave for reasons related to child care.  In applying for this exemption, an employer must show that the requirements of the FFCRA would “jeopardize the viability of the business as a going concern” in one of the following ways: 

  • The paid sick leave or emergency FMLA leave would result in the employer’s expenses and financial obligations to exceed available business revenues and cause the employer to stop operating at a minimal capacity;
  • The absence of the employee(s) requesting such leave would cause a substantial risk to the financial health or operational capabilities of the employer because of such employee(s)’s specialized skills, knowledge, or responsibilities; or
  • There are not sufficient employees who are able, willing, qualified, and available at the time and place needed to perform the services by such employee(s) requesting leave, and these services are needed for the employer to operate at a minimal capacity. 

If an employer claims that it is exempt from the leave provisions of the FFCRA related to childcare and, as a result, denies an employee’s paid sick leave or emergency FMLA leave request, the employer’s authorized officer needs to document that it is eligible for the small business exception.  An employer must retain this documentation for four years.  However, the employer does not need to submit this documentation to the DOL at this time.  Small businesses claiming that they are exempt from the FFCRA must post the DOL’s FFCRA notice in the workplace. 

For further information on the implications of COVID-19 on employment, or other employment related questions, please contact Christopher L. Brigham, Chair of the Employment Law Practice Group at Updike, Kelly & Spellacy, P.C. at (203) 786-8310 or cbrigham@uks.com, or Jeffrey E. Renaud, Associate Attorney in the Employment Law Practice Group at (860) 548-2629 or jrenaud@uks.com.

Disclaimer: The information contained in this material is not intended to be considered legal advice and should not be acted upon as such. Because of the generality of this material, the information provided may not be applicable in all situations and should not be acted upon without legal advice based on the specific factual circumstances.