By Rick Reyes
On Wednesday, April 1, 2020, the Department of Labor (DOL) issued a temporary rule addressing and clarifying multiple issues with respect to the Families First Coronavirus Response Act (FFCRA), including the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (FMLA Expansion). The 124-page temporary rule provides useful guidance to employers across the nation. For the reader’s convenience and in an attempt to make the information more accessible, we approach the temporary rule in a topic-by-topic Q&A format. If you have any specific questions relating to your business or company, please always consult with experienced legal counsel.
Employers Subject to the FFCRA
1. To which employers does the FFCRA apply to?
Employers with less than 500 employees, regardless of whether they are for-profit or non-profit are subject to the FFCRA.
2. Which employees are included in the 500-employee threshold?
Full and part time employees, employees who are on any leave of absence, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency.
3. Are there any type of employees who should not be included in calculating the 500-employee threshold?
Independent contractors, employees who have been laid off or furloughed and not subsequently reemployed, and employees outside of the U.S. or territory, are excluded from the calculation
4. I currently employ less than 500 employees. What if in the future, but prior to December 31, 2020, my workforce exceeds 500?
Whether an employer is required to comply with the leave requirements under the FFCRA depends on the number of employees at the time the employee would take the leave. For example, if the employer has 450 employees on May 5, 2020, the employer must comply. However, if the employer then subsequently hires 60 employees on August 3, 2020, thereby raising the number of total employees to 510, the employer would no longer be covered under the FFCRA.
5. Are there any exempted employers from FFCRA?
The regulations provide for a “Small Business Exemption.” A small business is an employer with less than 50 employees whose compliance with the FCCRA would jeopardize the viability of the business as a going concern. The regulations further clarify three (3) situations in which such an exemption may apply. First, if granting the leave would cause the employer’s expenses and financial obligations to exceed available business revenue. Second, if the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of the employee’s specialized skills, knowledge of the business or responsibilities. Third, the employer cannot find enough workers who are able, willing, and available at the time and place needed to perform the labor or services and allow the employer operate at minimal capacity. For further information regarding the Small Business Exception, see Questions 36 and 39, below.
Employee Eligibility for Leave Under the FFCRA
6. Which employees are eligible for leave under the FMLA expansion?
Only those employees how have worked for the employer for at least 30 calendar days immediately prior to the day that the employee’s leave would begin. For example, if an employee requests leave on April 1, 2020, the employee must have had been employed by the company as of March 2, 2020. Health care providers and emergency responders may be excluded (See Questions 9 and 10, below).
7. Which employees are eligible for leave under the EPSLA?
All employees. Health care providers and emergency responders may be excluded (See Questions 9 and 10, below).
8. Are there any employees specifically excluded from the FFCRA leaves of absence?
The FFCRA permits employers from excluding from coverage “emergency responders” and “health care providers.”
9. Which employees are “emergency responders?”
Anyone necessary for transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes, amongst others: emergency medical services personnel; physicians; Nurses; public health personnel; Emergency medical technicians; Persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency
10. Which employees are “health care providers?”
Anyone employed at a: doctor’s office; hospital; health care center; clinic; post-secondary educational institution offering health care instruction; Medical school; local health department or agency; nursing facility; retirement facility; nursing home; home health provider; any facility that performs laboratory or medical testing; pharmacy; or any similar institution, employer or entity
11. If I lay off an employee on or after March 1, 2020, and subsequently rehire him or her, is the employee entitled to leave under the FFCRA?
It depends. An employer who rehires such an employee needs to provide leave of absence under the FFCRA only if the employee was on the employer’s payroll for 30 or more of the prior 60 calendar days prior to the date the employee was laid off.
Qualifying Reasons for Leave Under the FFCRA
12. The FMLA Expansion provides that an employee may request leave if he or she is unable to work due to a need to take care of his or her child under 18 years old because of a school closure or unavailability of the child’s care provider. Does this mean that the employer may not request such leave for children older than 18?
Generally, that is correct. However, in the temporary rule, the DOL explains that an employee may take leave under the FMLA expansion to take care of a child 18 years or older who is incapable of self-care due to a mental or physical disability. This is also true for leave under the EPSLA for this particular qualifying reason.
13. There are six (6) different qualifying reasons for leave under EPSLA. If my company does not have any work for the employee (such as when there has been a local or state-mandated closure), do I have to provide and pay for leave under the EPSLA?
An employer is not required to provide or pay for leave if there is no work to be performed by the employee.
14. There are six (6) different qualifying reasons for leave under EPSLA. If the physical work location is closed due to COVID-19, but my company permits teleworking, can an employee still take a leave of absence?
No for at least 2 of the 6 qualified reasons. If the employer permits the employee to perform his or her work from the location where the employee is being quarantined or isolated (Qualifying Reason No. 1), or the location from which the employee is awaiting medical results (Qualifying Reason No. 3), then the employee is not entitled to EPSLA. This is true, absent any “extenuating circumstances that prevent the employee from performing such work” (such as severe symptoms due to COVID-19).
15. An employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis (Qualifying Reason No. 3). May such employee take leave under EPSLA while awaiting the results?
Yes, unless the employer permits the employee to perform his or her work from the location where the employee is waiting (i.e., telework).
16. An employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis (Qualifying Reason No. 3), but failed to meet the criteria and is not tested. Rather, he is advised to self-quarantine. Can the employee take leave under EPSLA?
While such employee may not take leave under Qualifying Reason No. 3, he or she may be eligible under Qualifying Reason No. 2 (being advised by a health care provider to self-quarantine).
17. The employee is wants to take leave to take care of an individual who is unable to work due to a federal, state or local quarantine or isolation order, or who has been advised to self-quarantine by a health care provider (Qualifying Reason No. 4). Can such “individual” be anybody?
The temporary rule clarifies that the employee must have a personal relationship with such individual. Examples include: immediate family members, a roommate, or any similar person with whom the employee has a relationship that creates an “expectation” that the employee would care for the person.
18. The employee wants to take a leave of absence under EPSLA because his or her child’s school or place of care is closed, or the child’s provider care is unavailable, due to COVID-19 related reasons (Qualifying Reason No. 5). However, the employee’s spouse can and is taking care of the child already. May the employee still take a leave of absence under this qualifying reason?
An employee is not entitled to take a leave of absence under this Qualifying Reason if another suitable individual (such as a co-parent, co-guardian, etc.) is available to care for the employee’s child’s needs.
19. Qualifying Reason No. 6 allows an employee to take a leave of absence under EPSLA if he or she is experiencing any other “substantially similar condition” as specified by the Department of Health and Human Services. What are examples of a “substantially similar condition” as of right now?
Currently, the Department has not specified any substantially similar condition vis-à-vis COVID-19. Therefore, an employee may not currently take a leave of absence under Qualifying Reason No. 6.
Wage and Hour Issues
20. How must employees be compensated for leave of absence under the FMLA Expansion?
Employees must be compensated at the regular rate of pay. This is computed over a 6-month period ending on the date on which the employee first takes FMLA Expansion leave. For example, if an employee takes FMLA Leave on June 1, 2020, the regular rate of pay would be calculated during the period of January 1, 2020 through June 1, 2020.
21. How much compensation are employees entitled to for leave of absence under the FMLA Expansion?
For each day of FMLA Expansion leave, the employer must pay the employee 2/3 of the employee’s regular rate times the number of hours the employee would normally be scheduled to work on that day. For example, if an employee would have worked 8 hours on that given day, the employee would be entitled to 8 hours at 2/3 the employee’s regular rate of pay. Note, however, that the employer is not required to pay for the first 2-weeks of FMLA Expansion leave, unless the employee is concurrently taking EPSLA leave.
22. Are there any caps on the amount employers are required to pay employees for leave of absence under FMLA Expansion?
Employees cannot receive more than $200 per day, $1,000 per week, or $10,000 in the aggregate.
23. How must employees be compensated for leave of absence under EPSLA?
Employees must be compensated at the highest applicable wage rate of (1) the employee’s regular rate of pay, (2) the Fair Labor Standards Act minimum wage, or (3) the highest applicable state or local minimum wage. Note, Option (2) will never be applicable to California employers.
24. How much compensation are employees entitled to for leave of absence under EPSLA?
It depends on the underlying Qualifying Reason. For Qualifying Reasons 1 through 3 (those that require leave due to care for the employee’s own health), the employer must pay the employee his or her full-rate of pay. For Qualifying Reasons 4 through 6 (leave due to care for someone other then the employee), the employer must pay the employee 2/3 his or her rate of pay.
25. Are there any caps on the amount employers are required to pay employees for leave of absence under EPSLA Leave?
For Qualifying Reasons 1 through 3, employees cannot receive more than $511 per day, $2,555 per week, or $5,1100 in the aggregate. For Qualifying Reasons 4 through 6, employees cannot receive more than $200 per day, $1,000 per week, or $2,000 in the aggregate.
Traditional FMLA, FMLA Expansion and EPSLA Interplay
26. Can an employee take EPSLA and FMLA Expansion concurrently to care for his or her child?
Under this situation, the employee would be entitled to 12 weeks of paid leave. This is because the first 2 weeks would be paid under EPSLA and the remaining 10 weeks would be paid under FMLA Expansion. Of course, this is only if the employee decides to take the leave of absence concurrently.
27. My employee has already exhausted leave under EPSLA for a Qualifying Reasons other than to take care of his or her child. Would the employee still be entitled to the 12 weeks of paid leave?
Generally, no. If the employee has already exhausted (i.e., taken the full 2 weeks under EPSLA), and then requests leave of absence under FMLA Expansion, the employee would be entitled to the full 12 weeks of leave, but only 10 of those weeks would be paid. The situation would be different if the employee has only partially exhausted leave under EPSLA or if the employer’s PTO/Vacation policies provide for greater paid leave benefits.
28. Prior to the FFCRA going into effect, my employee had previously exhausted all of his or her leave under the traditional FMLA. Is this employee entitled to additional leave under the FMLA Expansion?
No, the FMLA Expansion does not create additional rights. As such, if the employee has already taken 12-weeks of leave under the traditional FMLA, the employer need not grant additional paid leave under the FMLA Expansion.
29. May an employee take intermittent leave under the FFCRA, and are there any specific requirements?
Yes, an employee may take intermittent leave. Both the employer and the employee must agree to intermittent leave (specifically the increments of time in which leave may be taken), and even though not required, the DOL recommends that such agreement be reduced in writing.
30. My business does not have the capability to allow employees to telework. Can an employee take intermittent leave for on-site work?
Generally, no. The temporary rule stated that an employee may only take leave intermittently (in any increment) in circumstances where there is minimal risk that the employee will spread COVID-19 to other employees at the worksite. Therefore, intermittent leave under this circumstances would only be possible for Qualifying Reason 5 (taking care of the employee’s child) and the FMLA Expansion.
Poster and Notice Requirements
31. I know that employers are required to place a poster in the workplace or to provide the notice/poster to employees via email or mail. Many of my employees speak a language other than English. Am I legally required to provide employees with the poster in their language?
While the Department of Labor has provided a Spanish version of the poster, employers are not required to provide a translated notice to their employees.
32. Under the traditional FMLA, employers are required to provide certain notices to employees requesting or taking leave of absences for a qualifying reason. Am I required to provide such notices to employees taking a leave of absence under the FMLA Expansion?
The DOL has determined that employers are not required to provide employees with notices of eligibility, right and responsibilities, or written designations that would be traditionally required for FMLA leave allowances.
33. Did the temporary rule provide any further clarification on what documentation must the employee provide to employers prior to taking a leave of absence under either the EPSLA or FMLA Expansion?
The DOL explained that the documentation will depend on the underlying Qualifying Reason.
For Qualifying Reason 1 (employee unable to work due to federal, state or local quarantine order), the employee must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.
For Qualifying Reason 2 (employee was advised by a health care provider to self-quarantine), the employee must provide the name of the healthcare provider who advised him or her to self-quarantine.
For Qualifying Reason 4 (employee is taking care of an individual eligible under Qualifying Reason 1 or 2, above), the employee must provide either (1) the name of the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual of self-quarantine
For Qualifying Reason 5 (leave to take care of the employee’s child), the employee must provide the name of the child being cared for, the name of the school, place of care, or child-care provider that closed or became unavailable due to COVID-10 reasons and a statement representing that no other suitable person is available to care for the child during the period of requested leave (See Question 18, above). Note that this applies tom both the EPSLA and FMLA Expansion.
34. What am I supposed to do with the documentation that the employee submits in support of his or her request for leave of absence under FFCRA?
Employers are required to retain all documentation in relation to FFCRA leave requests for four (4) years, regardless of whether the leave was granted or denied.
35. What if the request and supporting statements were made orally by the employee?
If an employee provides oral statements to support his or her request for EPSLA or FMLA Expansion leave, the employer is required to document and retain such information for four (4) years, regardless of whether the leave was granted or denied.
36. I believe that my company qualifies for the “Small Business Exception” (See Question 5, above). Do I need to preserve any records?
The employer must document its authorized officer’s determination that the prerequisite criteria for that exemption is satisfied. The employer must retain these documents for four (4) years.
Return to Work After Leave Under EPSLA/FMLA Expansion
37. Is an employee returning from leave under the EPSLA/FMLA Expansion entitled to reinstatement?
The employee is generally entitled to be restored to the same or an equivalent position upon return from EPSLA or FMLA Expansion, just as if the employee would be returning to work after traditional FMLA leave.
38. Are there any exceptions or instances in which an employee would not be entitled to reinstatement?
- First, certain employment actions that would have affected the employee regardless of whether the leave was taken may not require reinstatement. For example, if an employee is laid off he or she would not be entitled to reinstatement. However, the employer must be able to show that the employee would have been laid off even if he or she had not taken any leave (such as if the business closed down).
- Second, for those employers with less than 25 employees, reinstatement is not required if (1) the employee took leave of absence under FMLA Expansion or Qualifying Reason No. 5 under EPSLA (taking care of the employee’s child); (2) the employee’s position no longer exists due to economic or operating conditions that affect the employee and are caused by a public health emergency during the period of the employee’s leave; (3) the employee made reasonable efforts to restore the employee to the same or equivalent position; and, (4) if the reasonable efforts fail, the employer makes a reasonable effort for a period of time (defined as 1 year after the reason for leave concludes or the date 12 weeks after the employee’s leave began, whichever is earlier) to contact the employee if an equivalent position becomes available.
39. If I believe my company qualifies under the Small Business Exception, do I need to submit an application or documentation to the Department of Labor?
Employers need not apply to qualify for this exemption nor are they required to submit any documents to the DOL. Rather, they must retain these documents (See above).
40. If I am required to provide leave under the FFCRA, do I need to provide any further leave under any other law?
Subject to certain limitations (See Questions 27 and 28, above), yes. Leave under the FFCRA is in addition to, rather than a substitute for, other sources of leave which the employee had already accrued, was already entitled to, or had already used, before the FFCRA became effective. This includes leaves of absence under state or local law, or any pre-existing leave of absences provided by the employer (e.g., PTO/Vacation).
41. Some of my employees took unpaid or partially paid leave before the FFCRA went into effect (i.e., April 1, 2020). Am I required to pay for such leave now that the law is in effect?
Employees do not have any right or entitlement to be paid for leave taken for Qualifying Reasons under the FFCRA prior to April 1, 2020. The FFCRA is not retroactive.
42. If I terminate any employee after the FFCRA went into effect (April 1, 2020), am I legally required to “cash out” their unused FFCRA leave?
No employer has any obligation to provide financial compensation or other reimbursement for unused EPSLA or FMLA Expansion leave.
43. If I hire an employee who was provided with and took all of his or her available leave of absence under the FFCRA through his or her former employer, am I required to provide the new hire with further leave under the FFCRA?
Once an employee takes the maximum 80 hours of leave, he or she is not entitled to any paid sick leave from a subsequent employer. Note, however, if the new hire has not previously exhausted all 80 hours, then the new employer must provide paid sick leave until the 80 hours have been exhausted.
44. If an employee is taking leave under the FFCRA, must they continue to receive company-provided health care coverage?
The employee must continue to receive such health benefits during the leave.
45. I believe employers will receive tax credits for leave paid to employees under the FFCRA. Is this correct?
Yes, that is correct. Employers may qualify for reimbursement through refundable tax credits for: (1) all qualifying EPSLA and FMLA Expansion wages paid to an employee, and (2) for all allowable costs related to the maintenance of health care coverage under any group health care plan while the employee is on the leave provided under FCRA.