Labor & Employment News Alert

By: Jill E. Hall and Wendy G. Adkins

The United States Department of Labor issued a temporary rule on April 1, 2020, related to the Families First Coronavirus Response Act. The new rule interprets the paid leave provisions of the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). Below is a summary of highlights from the rule that provide new information or more detail on previously issued guidance. 

1. “Child Care Provider” (relevant to a request for leave to care for a child whose school or child care provider has been closed for a COVID-related reason) means a provider who receives compensation for providing child care services on a regular basis and is “licensed, regulated, or registered under State law.”  However, if the child care provider is a “family member or friend, such as a neighbor,” the provider need not be compensated or licensed. 
2. “Telework” means work the employer permits or allows an employee to perform while at home (or another location other than the employee’s normal workplace). An employee is able to telework if: (a) the employer has work for the employee; (b) the employer permits the employee to work from home; and (c) there are no extenuating circumstances that prevent the employee from performing that work.  Telework may be performed during normal work hours or at other times agreed by the employer and employee.

Employees are eligible for paid leave if they satisfy a Qualifying Reason and are not able to telework.  An employee will not be able to telework if a circumstance prevents him or her from performing the work.  An example provided by the rule is when an employee loses electricity while trying to work from home.  In this case, the employee would not be able to telework and, if a Qualifying Reason is satisfied, would be eligible for Emergency Paid Sick Leave (“EPSL”).

Employees who telework must record and be compensated for all hours actually worked. Employers are not required to compensate employees for unreported hours worked unless they knew or should have known of the work.

3. EPSL is available to eligible employees for six Qualifying Reasons.  Regarding Qualifying Reason (1) (employee cannot report to work or telework because they are under a federal, state, or local isolation or quarantine order), a stay-at-home order that requires a business to close or causes a downturn in business resulting in a temporary or indefinite closure does not afford paid sick leave to an employee. The rule explains that in such situations, lack of work is the reason why an employee cannot come to work, not the order itself.  Qualifying Reason (1) appears directed at state and county health department quarantine orders that prevent an employee from working when a worksite is open with sufficient work for the employee to do.  Employees who can telework despite an isolation or quarantine order do not qualify.  
4. Regarding Qualifying Reason (3) (employee is experiencing COVID symptoms and seeking a medical diagnosis), EPSL is limited to the time the employee is unable to work because he or she is taking steps to obtain a diagnosis. Paid leave is available for the time spent making, waiting for or attending an appointment with a health care provider.  If, after seeking a diagnosis, an employee is advised to self-quarantine by a health care provider, the employee would satisfy Qualifying Reason (2) for EPSL (employee has been advised by a health care provider to self-quarantine due to COVID-related reasons). A total of two weeks paid leave would be available during the time the employee spends seeking a medical diagnosis under Qualifying Reason (3) and during the time the employee is self-quarantining as advised by a health care provider under Qualifying Reason (2). 
5. EPSL for Qualifying Reason (4) (employee is caring for an individual subject to a quarantine order or advised by a healthcare provider to self-quarantine), is available as long as there is a genuine need to care for the individual. The individual 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.”  
6. An employee may take EPSL for Qualifying Reason (5) (caring for a son or daughter whose school or place of child care has been closed due to a COVID-related reason) only when the employee needs to, and actually is, caring for the child. Leave is not necessary if a co-parent or usual child care provider is available to care for the child.
7. An employee is eligible for EFMLEA leave (to care for a son or daughter whose school or place of child care has been closed for a COVID-related reason) if he or she has worked for the covered employer for at least 30 days. There is an exception as set forth in the CARES Act. If an employee is laid off or terminated after March 1, 2020 but is later rehired prior to December 31, 2020, that employee does not have to work another 30 days prior to being eligible for EFMLEA leave. 
8. The rule sets forth what documentation employees may be required to provide when requesting paid leave. Employees are required to provide the following prior to taking EPSL or EFMLEA leave: employee name; dates for which leave is requested; Qualifying Reason for leave; and an oral or written statement that the employee is unable to work because of the reason for leave. To the extent any information is obtained orally, employers should document the same.

Employees must provide additional information depending on the Qualifying Reason invoked to support the request for leave:

• Qualifying Reason (1) (employee is subject to federal, state or local quarantine or isolation order related to COVID-19): the name of the government entity that issued the order.
• Qualifying Reason (2) (employee has been advised by a health care provider to self-quarantine due to COVID-19): the name of the health care provider advising the employee to self-quarantine.
• Qualifying Reason (4) (employee is caring for an individual who is subject to a federal, state or local quarantine or isolation order OR is advised by a health care provider to self-quarantine): either the name of the government entity that issued the order or the name of the health care provider advising the individual to self-quarantine.
• Qualifying Reason (5) (caring for son or daughter whose school or place of care has been closed due to COVID-related reason): the name of the child being cared for; the name of the school or place of child care; and a representation that no other suitable person is available to care for the child.  The IRS has noted that an employee seeking leave to care for a child older than fourteen during daylight hours should provide a statement that special circumstances exist requiring the employee to provide such care.
• No additional information can be requested for Qualifying Reason (3) (employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis) or Qualifying Reason (6) (employee has a substantially similar condition as specified by the Secretary of Health and Human Services to be defined at a later date).

Note that employees are not required to provide doctors’ notes for any of the Qualifying Reasons.

All documentation must be retained for four years whether the leave was granted or denied.

9. An employer may require that accrued paid leave be used concurrently with paid EFMLEA leave (the last ten weeks of EFMLEA leave). If an employer chooses to require that accrued paid leave run concurrently with the last ten weeks of EFMLEA leave, it must pay an employee a full day’s pay for any day of EFMLEA leave (but the employer can claim a tax credit only for 2/3 of pay). The rule cautions that employers should not require that accrued sick leave run concurrently with paid EFMLEA leave, but it is unclear how this would work if an employer has one category of paid leave available (e.g., PTO that can be used for any reason). Employers may not require that other accrued paid leave run concurrently with Emergency Paid Sick Leave. 
10. The two weeks of EPSL and 10 weeks of EFMLEA leave are paid at 2/3 the regular rate of pay. An employer, however, may permit an employee to supplement the 2/3 pay with other accrued paid leave so that the employee receives the full amount of their normal pay. Employers may permit employees to supplement the 2/3 pay from EPSL and EFMLEA leave with other accrued paid time off, but they are not required to do so. Even if an employer allows supplementation of the 2/3 pay, the employer can claim a tax credit only up to 2/3 of pay.    
11. References to the “first 10 days” of EFMLEA leave (the portion of EFMLEA leave that is unpaid) has been changed to the “first two weeks” of EFMLEA leave. This is a distinction without a difference for employees who regularly work Monday through Friday.
12. The rule confirms that a “son or daughter” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age, and also includes a child who is 18 years of age or older if the child is disabled and incapable of self-care.  
13. A written designation of EFMLEA leave is not required. The rule states that employers who are already accustomed to using the model designation forms for traditional FMLA leave may prefer “to apply existing practices” to EFMLEA leave, but there is no magic way to designate the leave. Employers should ensure that all requests for leave are granted or denied in writing.  
14. The Small Employer Exemption permits small private employers with fewer than 50 employees to deny EPSL or EFMLEA leave to an employee to care for the employee’s son or daughter whose school or place of child care is closed for COVID-related reasons. A small employer is exempt from the requirement to provide such leave when: (a) the leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity; (b) the absence of the employee requesting leave would pose a substantial risk to the financial health or operational capacity of the small employer because of the employee’s specialized skills, knowledge of the business or responsibilities; or (c) the small employer cannot find enough other qualified workers who will be available at the time and place needed to perform the services the employee requesting leave provides, and those services are necessary for the small employer to operate at a minimal capacity. A small employer who denies such leave must document the facts and circumstances that meet the criteria to justify the denial. Such documentation should be retained for four years following the denial of leave.
15. An employee may not bring a private action against an employer under the EFMLEA if the employer is not otherwise subject to the FMLA.