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FFCRA Leave Regulations Issued by DOL on April 1 Revise and Expand FAQs

Labor & Employment Alert Otto W. Immel, Brenna M. Wildt

On April 1, the Department of Labor (DOL) released temporary regulations that effectuate the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) contained in the Families First Coronavirus Response Act (FFCRA). Given the rapid escalation of the COVID-19 pandemic, the temporary regulations were issued with an immediate effective date and no prior notice and comment period.

In addition to addressing a number of technical details not covered by the prior FAQs (several of which have now been modified to conform to the regulations), the temporary regulations expand on and clarify several important areas of the legislation, including the following:

Counting Employees for Employer Coverage
The regulations reaffirm that in counting employees to determine whether the employer has fewer than 500 employees and must provide leave, the determination is to be as of the date an employee would commence leave. In counting, employers are to include all full-time and part-time employees employed in the US—including employees on any form of leave, jointly employed employees of placement agencies, and day laborers—regardless of how long the employee has been employed. Employers are not to count workers who have been furloughed or laid off, and not rehired, or independent contractors (under the FLSA). For corporate entities with shared ownership, the FLSA test to determine joint employment applies and for otherwise separate entities, the FMLA test to determine integrated employers applies.

Intermittent Leave
While the FAQ’s stated that if the employer and employee agree, an employee can take EPSLA and EFMLEA leave on an intermittent basis, the temporary regulations expressly disallow intermittent leave for employees working in the workplace (i.e. not teleworking) who take EPSLA for any COVID-19-related reasons other than to care for a child whose school or place of care is closed, or childcare provider is unavailable. The regulations clarify that these employees must take full-days of leave consecutively until the employee no longer has a qualifying reason to take such leave. This provision is designed to eliminate the “unacceptably high risk” that these employees may spread COVID-19 in the workplace. As telework does not pose the same risk, mutually agreed intermittent leave for teleworkers for any reason remains permissible.

Combination of EPSLA, EFMLEA, and Other Leave
The regulations confirm that employees can take multiple forms of leave concurrently, including EPSLA, EFMLEA, and other paid leave provided by the employer. For example, employers can require that employees take accrued paid leave with EFMLEA leave. Likewise, employees who take EFMLEA leave may take either EPSLA or other accrued leave for the first two weeks (unpaid) of EFMLEA leave. In fact, if the employer and employee agree, an employee can take EPSLA and other accrued leave concurrently during the first two weeks of EFMLEA. The employer and employee can also agree to an employee’s use of accrued leave to supplement EPSLA leave.

Intersection Between EFMLEA and FMLA
An employee’s eligibility for EFMLEA leave depends on the employee’s use of FMLA during the relevant 12-month FMLA leave year, as discussed in our previous article. If an employee has already taken FMLA leave during the employer’s normal FMLA year, the employee may not be able to take the full 12 weeks of EFMLEA leave. Regardless of the employer’s normal FMLA year, employees are limited to 12 weeks of EFMLEA leave between April 1, 2020 and December 31, 2020 (even if that period spans two 12-month FMLA leave periods).

Notable Definitions and Specifications

  • “Quarantine or Isolation Orders” - The FFCRA regulations set forth a broad definition of “quarantine or isolation orders,” which includes a wide array of government directives, like shelter in place, stay at home, and quarantine orders. Eligible employees can take EPSLA leave if any such order prevents them from working or teleworking, but only if the employer has work for them. Work would not be available if the employer’s operations are affected by the same or other orders, the employer has laid off the employee for lack of work for that or other reasons, etc.
  • “Teleworking” - is also broadly defined under the regulations as work the employer permits or allows an employee to perform at home or another location. This expansive definition is expressly intended to accommodate and facilitate highly flexible telework arrangements, so that employees can perform the work usually required of them at the worksite, even if at unconventional times, and also tend to family and other responsibilities, (e.g., fitting periods of work around the need to monitor remote learning arrangements). Toward that end, the DOL is exempting telework for COVID-19 reasons from the continuous workday provisions of 29 C.F.R. §790.6, which ordinarily consider time between first and last principal activities to be compensable working time. Such arrangements are to be agreed upon by the employee and employer.
  • Child Care - Employees can take EPSLA and EFMLEA leave when they are unable to work because they need to care for a child whose school or place of care is closed or their childcare provider is unavailable. The temporary regulations clarify that EPSLA leave is only provided if no othersuitable individual” (such as a co-parent, co-guardian, or usual childcare provider) can provide care for the child. In fact, the regulations require a representation of such circumstances as a part of the documentation required for this type of FFCRA leave.
  • “Individual” - Similarly, the regulations clarify that an “individual” for whom an employee may take EPSLA leave to care for during a quarantine order can be an employee’s immediate family member, a person who regularly resides in the employee’s home, or someone with whom the employee has a relationship that creates an expectation that the employee would care for the person.

Not surprisingly, the regulations also confirm that the FFCRA applies to both for-profit and non-profit organizations, just like the Family and Medical Leave Act.

Documentation
Employees must submit documentation in order to take EPSLA and EFMLEA leave, and the FFCRA regulations list the specific information that must be included in this documentation. Employers should maintain this documentation for four years. Additionally, small businesses must also document any denial of leave due to the “jeopardize the viability of the business” exception which is covered in our previous article. Even if small businesses intend to invoke this exemption and deny FFCRA leave benefits, they still must post the required DOL poster.

Click here to view the temporary regulations. Quarles & Brady will continue to monitor these regulations as the DOL is likely to publish additional information on an ongoing basis.


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