Earlier this month, the US Department of Labor (DOL) promulgated regulations to implement the recently enacted Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA), both of which are part of the broader Families First Coronavirus Response Act (FFCRA). The regulations address several key issues that were unclear in the original statutory language. Still, as explained below, several critical questions surrounding the EPSLA and EFMLEA remain unanswered.
Employer Coverage Issues under the FFCRA
Subject to certain eligibility requirements, the plain language of the FFCRA requires employers to furnish EPSLA and EFMLEA leave to their workers if the business has fewer than 500 employees in the United States. The regulations make clear, however, that the determination of whether an employer falls under this threshold must be made on a rolling basis at the time a particular employee requests leave (rather than, for instance, as of the FFCRA’s April 1 effective date).
This approach will require employers to take a “snapshot” of employee headcount at different intervals to assess the paid-time-off and leave entitlements of particular employees. And the regulations in fact even recognize that the approach may result in employees of the same entity having different paid-time-off and leave rights depending on when the employee requests leave. For example, a company with 499 or fewer employees in April may need to grant leave to employees, but if its payroll is over 500 in May, it can deny a request for FFCRA leave at that time.
The regulations also clarify that, for purposes of determining employee headcount under the FFCRA, employers must include all full-time and part-time employees, employees on leave, and day laborers supplied by a temporary agency. If the company is a “joint” or “integrated” employer under previous DOL standards, the employees of all entities must be counted together. The regulations also clarify that independent contractors do not count towards the 500-employee threshold (although it remains to be seen how this concept applies to workers who are excluded from the FFCRA calculation but are misclassified as independent contractors). See 28 C.F.R. § 826.40. The DOL further clarifies that employees who have been temporarily laid off or furloughed, and not subsequently reemployed, do not count toward the 500-employee threshold for determining employer eligibility under the FFCRA. See 29 C.F.R. § 826.40(a)(1)(iii).
The effect of state and local shut down orders on paid sick leave
The EPSLA has six qualifying reasons for which an employee may take paid sick leave, including if the employee is unable to work as a result of a “quarantine or isolation order.” Prior to the DOL’s regulations, some uncertainty existed as to whether an inability to work as a result of a state or local shelter-in-place, stay-at-home, or similar executive order triggered eligibility for this qualifying reason under the EPSLA. There was some thought that quarantine and isolation orders necessarily contemplate health and risk assessments of individuals and that, as such, state and local orders that required the shutdown of nonessential businesses would not trigger EPSLA eligibility for employees of those businesses.
The DOL’s regulations make patently clear that “[q]uarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” Section 826.20(a)(2), however, explains that an employee may take paid sick leave only if being subject to one of these orders prevents them from working or teleworking. The question is thus whether the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order. The regulations make clear that, if an employee cannot work or telework for other reasons, such as the employee’s position was eliminated or the employer’s business closed whether due to a governmental order or the economic downturn, the employee is not entitled to leave. In other words, if there otherwise would be no work for the employee to do, the employee is not eligible for leave even if they otherwise work in a jurisdiction that has implemented a shelter in place, stay at home, or similar order.
The regulations also distinguish situations in which no work is available, from those in which a qualifying event causes an employee to be unable to work or telework. In explaining the rule, the DOL notes that, if a coffee shop closes temporarily or indefinitely due to a business downturn related to COVID-19, it does not have work for employees to perform, so employees cannot take leave; this applies even if a stay-at-home order substantially causes the closure.
Employee notice obligations
Another subject of discussion prior to implementation of the FFCRA regulations was the breadth of information an employer can request from an employee to substantiate the need for FFCRA time off or paid leave. The DOL regulations provide some guidance on this issue, but fail to answer several critical questions. One issue that the regulations do appear to resolve is that the source of information verifying the need for FFCRA will in most cases come from the employee, not the employee’s health care provider. The following is a summary of the content of the employee notice required for each of the reasons for time off and leave under the FCRA:
- Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the order.
- A health care provider advises an employee to self-quarantine due to concerns related to COVID-19: the name of the health care provider who advised the employee to self-quarantine.
- Employee is caring for an individual who is subject to a quarantine or isolation order or an individual who has been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the order to which the individual being cared for is subject, or, the name of the health care provider who advised the individual being cared for to self-quarantine.
- Employee is caring for a child whose school is closed, or childcare is unavailable due to COVID-19 precautions: name of the child, name of the school, place of care or childcare provider (each defined in the regulations) that has closed or become unavailable, and a representation that “no other suitable person will be caring for the child during the period” and the employee is taking EPSL or expanded FMLA leave for this reason.
What the regulations do not address is the degree of employer follow up, if any, that is permitted. For example, if an employee identifies a healthcare provider who has advised that an employee self-quarantine, can the employer follow up with the healthcare provider or make further inquiry regarding the employee’s status? If an employer has questions about an employee’s inability to work as a result of a school or day care closing, can the employer contact the school or other childcare provider or require further confirmation from the employee as to his or her inability to find other care? The current regulations do not address these types of questions.
The interplay between EFMLEA leave and “regular” FMLA leave
The EFMLEA expanded the FMLA to add a sixth reason to take FMLA leave: namely, to care for an employee’s son or daughter whose school or place of care is closed or childcare provider is unavailable due to COVID-19 related reasons (which is also one of the six EPSLA qualifying reasons). The regulations address the interaction between this new leave entitlement and other leave available under the FMLA.
The regulations clarify that an employee’s ability to take EFMLEA depends on his or her use of non-COVID-19-related FMLA leave during the preceding 12-month FMLA leave year and provide two examples based on how the employer defines a 12-month period. If an employer, for instance, uses the calendar year and an employee took three weeks of FMLA leave in January 2020, he or she would only have nine weeks of expanded family and medical leave available. If the April 1 to December 31, 2020 leave, on the other hand, spans two twelve-month leave periods under the FMLA, employees are limited to twelve weeks of EFMLEA leave.
The regulations also note that employees need to have been employed for only 30 calendar days to be eligible for EFMLEA leave, whereas employees need to have worked for the employer for 12 months, have 1,250 hours of service in the preceding 12-month period, and work at a location where the employer has at least 50 employees within 75 miles to be eligible under the FMLA. These restrictions do not apply to EFMLEA requests.
The interplay between EPSLA and EFMLEA/FMLA
The regulations clarify the circumstances under which EFMLEA leave is available to an employee who has already used his or her two weeks of paid sick leave under the EPSLA. If an employee qualifies for leave under both acts, the employee may use the first two weeks of paid leave under the EPSLA. This may run concurrent with the first two weeks of leave under the EFMLEA, which are otherwise unpaid. If an employee has already used their 12 weeks of FMLA or EFMLEA leave, they still are eligible for EPSLA leave for a COVID-qualifying reason.
The regulations also provide that if the employee has used up their EPSLA leave, the employee may still take leave under the EFMLEA, although in that case the first two weeks of such leave may be unpaid. The employee, however, can choose to substitute earned or accrued paid leave that is available under the employer’s policies during those two weeks.
The availability of intermittent leave under the FFCRA
The regulations also address the circumstances under which EPSLA or EFMLEA leave may be taken intermittently, noting that in each and every such case the employee and the employer must agree to the arrangement as well as the increments of time in which leave may be taken. The regulations provide that if an employee is teleworking, the employee may take paid sick leave or expanded family and medical leave intermittently, again as agreed to with his or employer.
Employees who report to a worksite, however, may take paid sick leave or expanded family and medical leave intermittently “where there is a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite.” The regulations give the example of an individual who takes such leave to care for his or her son or daughter whose school or place of care is closed. In all other cases, the employee may not take intermittent leave due to the “unacceptably high risk” that the employee might spread COVID-19.
Numerous questions still abound regarding the roughly three-week-old FFCRA. Nevertheless, the DOL’s regulations provide insightful guidance concerning some of the previously more unclear aspects of the statute. Employers should nevertheless stay in contact with their employment counsel as further FFCRA-related developments continue to unfold.