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What’s new in the DOL’s temporary regulations implementing the FFCRA?

New Rules signOn April 1, 2020, the Department of Labor released a temporary rule issuing regulations under the Families First Coronavirus Response Act (FFCRA) effective immediately through December 31, 2020. Employers who have been wrestling with compliance with the FFCRA’s paid leave provisions will recognize much of the material in these regulations from the DOL’s informal guidance or from the CARES Act’s amendments to the FFCRA*. The regulations also include some helpful clarification:

  • Broad definition of child care provider: The definition of “child care provider” includes a center-based child care provider, a group home child care provider, a family child care provider, or other provider of child care services for compensation that is licensed, regulated or registered under state law. It also includes a family member (g. grandparent) or friend (e.g. neighbor) who regularly cares for the employee’s child, even if that person is not licensed or paid for providing the child care services.
  • Definition of place of care. “Place of care” means a physical location where care is provided for the employee’s child while the employee works. It can include schools, homes, summer camps, summer enrichment programs and respite care programs.
  • Subject to a quarantine or isolation order: An employee subject to a quarantine or isolation order (g. “shelter in place”) may not take paid sick leave where the employer does not have available 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 he or she was not required to comply with the quarantine or isolation order. The question is whether the employee would be able to work or telework “but for” being required to comply with an order.
  • Advised by health care provider to self-quarantine: An employee who is advised by a health care provider to self-quarantine for a COVID-19 reason may only take paid sick leave if that advice is based on the health care provider’s belief that the employee has or may have COVID-19 or is particularly vulnerable to COVID-19, and self-quarantining prevents the employee from working, including telework.
  • Seeking medical diagnosis for COVID-19: Paid sick leave taken because an employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis is limited to time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for or attending an appointment for a test for COVID-19. Note that an employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.
  • Caring for an individual. Where an employee is caring for an individual who is subject to a federal, state or local quarantine or has been advised by a health care provider to self-quarantine, “individual” means an employee’s immediate family member, a person who regularly lives in the employee’s home (g. a 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 were quarantined. This does not include those with whom the employee has no personal relationship.
  • Caring for a son or daughter. An employee may take paid sick leave or may qualify for expanded family and medical leave to care for his or her child whose school or place of care has been closed, or whose child care provider is unavailable, only if no other suitable person, such as a co-parent, co-guardian or the usual provider, is available to care for the child during the period of such leave. Thus, an employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for the child.
  • Effect of furloughs and layoffs on employer eligibility: The number of employees counted toward the 500-employee eligibility threshold does not include workers who have been laid off or furloughed and have not been subsequently re-employed.
  • Election of the small business exemption: Employers must document the determination that their business qualifies under one of the small business exemptions. Sending the documentation to the DOL is unnecessary; instead, employers should retain the documentation in their files.
  • Posting still necessary even if one elects small business exemption: Employers must post the FFCRA’s notice, regardless of whether they decide to exempt one or more employees. Further, besides the requirements previously noted, employers furnishing notices to sensory-impaired individuals also must comply with all requirements under federal or state law.
  • Calculation of leave: When an employee takes paid sick leave or expanded family and medical leave intermittently to care for a child whose school or place of care is closed (when agreed to by the employer), only the amount of leave actually taken may be counted against the leave allotment. For instance, if an employee works 40 hours a week and takes three hours of leave each work day (for a total of 15 hours a week), then that employee has used 15 hours of the employee’s paid sick leave, or 37.5 percent of a workweek of the employee’s expanded family and medical leave.
  • Maximum of 12 workweeks of expanded family and medical leave even if the period spans two FMLA leave periods: Even though a portion of the 12 weeks falls in an employer’s prior 12-month period, the employee can only take a cumulative total of 12 weeks of expanded family and medical leave. For example, if an employer’s 12-month period begins on July 1, and an employee took seven weeks of expanded family and medical leave in May and June 2020, the employee would only have five weeks of expanded family and medical leave remaining between July 1 and Dec. 31, 2020, when the Emergency Family and Medical Leave Expansion Act expires.
  • Employees’ duty to provide notice of need for leave: Other than caring for one’s child whose school or place of care has been closed for reasons related to COVID-19, employers may require employees to follow reasonable notice procedures after the first workday for which an employee takes paid sick leave for any reason. A procedure is reasonable based on the facts and circumstances. The DOL explains that it is reasonable for the employer to require the employee to comply with the employer’s existing notice procedures and requirements, absent unusual circumstances. The DOL encourages employees to notify employers about their request for leave as soon as practicable. Prior to denying the request for leave for failure to give proper notice, the employer should give the employee notice of the failure and an opportunity to provide the required documentation.
  • Timing and delivery of notice: When an employee requests leave in order to care for a child whose school or place of care is closed or child care provider is unavailable, if the need for leave is foreseeable, the employee shall provide the employer with notice of his need to take paid sick leave or expanded FMLA leave as soon as practicable. For any other reason giving rise to paid sick leave, notice can be encouraged but may not be required in advance and may only be required from an employee after the first full or partial day that an employee takes paid sick leave or expanded FMLA leave. After that first day, an employer may require notice as soon as practicable under the circumstances, and an employee’s spouse, family member or other spokesperson may give the notice if the employee is unable to do so personally.  Oral notice is sufficient but must be documented by the employer for its records.
  • Documentation of need for leave: An employee must provide the employer documentation containing the following information when taking paid sick leave or expanded FMLA leave:
    • Employee’s name;
    • Date(s) for which leave is requested;
    • The COVID-19 qualifying reason for the leave; and
    • Oral or written statement that the employee is unable to work because of the COVID-19 qualifying reason for leave.

Additional documentation is required as follows:

    • If the reason for paid sick leave is that the employee is subject to a quarantine or isolation order, then the employee must also provide the employer with the name of the government entity that issued the quarantine or isolation order.
    • If the reason for paid sick leave is that the employee’s health care provider has advised the employee to self-quarantine due to concerns related to COVID-19, then the employee must also provide the employer with the name of the health care provider who gave this advice.
    • If the reason for paid sick leave is that the employee is caring for an individual subject to a quarantine or isolation order or who has been advised to self-quarantine by a health care provider, then the employee must also provide either (1) the government entity that issued the quarantine or isolation order to which the individual is being cared for; or (2) the name of the health care provider who advised the individual to self-quarantine.
    • If the reason for paid sick leave is that the employee is caring for a child whose school or place of care is closed, then the employee must also provide (1) the name of the child being cared for; (2) the name of the school or place of care that closed or is a care provider who is unavailable; and (3) a representation that no other suitable person will be caring for the child during the period of leave.
    • Of note, the employer may also ask an employee to provide additional material needed to support a request for tax credits pursuant to the FFCRA. The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided, see https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs
  • Health and wellness benefit coverage must be maintained: Akin to the FMLA, any employee taking paid sick leave or expanded FMLA leave is entitled to continued health and wellness benefits provided by the employer, including continued benefits for the employee’s dependents. Similarly, if the employer provides a new health benefit or changes plans while the employee is on leave, the employee is entitled to the new or changed plan or benefit as if the employee was not on leave. The employee is responsible for applicable premiums. If leave is unpaid or the employee’s pay is insufficient to cover the share of premiums, the employer may obtain payment from the employee in accordance with 29 CFR § 825.210(c).
  • Recordkeeping: Employers must keep the following records for four years:
    • all documentation provided by the employee requesting paid sick leave or expanded FMLA leave regardless if leave was granted or denied, including documentation of verbal statements from employees regarding leave;
    • documentation from an authorized officer of denial of any request for paid sick leave or expanded FMLA leave;
    • Documentation to support a claim for tax credits, including:
      • how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees who are eligible for the credit, including records of work, telework and paid sick leave and expanded family medical leave;
      • how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
      • copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
      • copies of the completed IRS Forms 941 that the employer submitted to the IRS or records of information provided to the third-party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941; and
      • any other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions and information for the procedures that must be followed to claim a tax credit.
  • Complaints and enforcement under the Emergency Paid Sick Leave Act (EPSLA): An employer who fails to provide leave under EPSLA is considered to have failed to pay the minimum wage as required by Section 6 of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 206, and is subject to the enforcement provisions of Sections 16 and 17 of the FLSA, 29 U.S.C. § 216, 217. Similarly, an employer who discharges, disciplines or discriminates against an employee in violation of EPSLA is considered to have violated Section 15(a)(3) of the FLSA, 29 U.S.C. 215(a)(3), and is subject to the enforcement provisions in Sections 16 and 17 of the FLSA. Complaints regarding violations can be filed in person, by mail or by telephone with the Wage and Hour Division of the DOL. The Secretary of the DOL has the authority to investigate complaints and subpoena power.
  • Complaints and enforcement under the Emergency Family and Medical Leave Expansion Act (EFMLEA): An employer who interferes with an employee’s rights under the EFMLEA or discriminates against an employee for exercising those rights is subject to the enforcement provisions of Section 107 of the FMLA, 29 U.S.C. § 2617 and 29 C.F.R. § 825.400, except the employee may file a private action to enforce the EFMLEA only if the employer is otherwise subject to the FMLA. Complaints regarding violations can be filed in person, by mail, or by telephone with the Wage and Hour Division of the DOL. The Secretary of the DOL has the authority to investigate complaints and subpoena power.
  • Sequencing: An employer may not require, coerce or unduly influence any employee to first use any other unpaid or paid leave to which the employee is entitled before the employee uses paid sick leave. Importantly, however, the employer may require the employee to use provided or accrued paid leave under the employer’s policies concurrently with EFMLEA. If the leave is taken concurrently, the employer must pay the employee the full amount to which the employee is entitled under the pre-existing paid leave policy for the period of leave taken.
  • No payout of unused paid leave: There is no obligation to pay an employee for unused paid sick leave or expanded family and medical leave upon employee’s cessation of employment or after Dec. 31, 2020.
  • One-time use of EPSLA: An employee is only entitled to 80 hours of paid sick leave. An employee who has taken all 80 hours and then changes employers is not entitled to additional leave from the new employer. An employee who has taken some, but fewer than 80 hours of leave, and then changes employers is entitled only to the remaining portion of the leave and only if the new employer is covered by the EPSLA.

*This post assumes the reader’s familiarity of the basics of the FFCRA and is intended to be a synopsis of top takeaways for employers.

Our Employment & Labor Practice Group is continuing to monitor these developments and is available to answer your coronavirus questions.

Link to COVID-19 Resources page

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