This article was updated on September 12, 2020, in light of the U.S. Department of Labor’s (DOL) revised rules implementing the FFCRA.
On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) in response to the spread of the novel coronavirus and the illness it causes, COVID-19. Among other fiscal packages, the act does three things: (1) expands the Family and Medical Leave Act (FMLA) temporarily (until the end of December 2020) to cover leave and loss of income when an employee needs to care for children because of school and childcare closures because of COVID-19; (2) creates two weeks of paid sick leave for childcare and other leave related to the coronavirus; and (3) provides for tax credits related to the paid leave mandated by the act. The FMLA amendments and the new federal sick leave were created in distinct sections. In many respects, they operate independently, but they were also clearly meant to align with one another, as they have many commonalities.
Both new laws apply only to certain covered employers (private employers with fewer than 500 employees and governmental agencies). The law became effective on April 1, 2020. Below are answers to some frequently asked questions about the FMLA amendments under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the new paid sick leave law under the Emergency Paid Sick Leave Act (EPSLA), in addition to recommendations as to how they may be interpreted.
Answer 1. Both the EFMLEA and EPSLA apply to governmental agencies (some federal government employees are excluded). As for private companies, the new laws apply only to employers affecting commerce (see question 3 below) with fewer than 500 employees in aggregate (this includes non-profit organizations and religious organizations according to question 58 of the U.S. Department of Labor’s (DOL) “Families First Coronavirus Response Act: Questions and Answers” guidance) at the time the employee needs to take the leave. This means the definition of “employer” includes employers that have fewer than 50 employees (see question 13 below), even if those employers were not previously covered under the FMLA (traditionally, the FMLA requires an employer to have 50 or more employees over 20 or more calendar weeks in 1 year). The EPSLA requirements are entirely new and use the same definition above for private employers and non-federal governmental entities.
To determine whether a company is covered, add
- the employees who receive a W-2 and who are working in the United States or a U.S. territory (see question 4); and
- the persons providing labor or services to the company, even if being paid by another company (including temporary employees (see question 5), leased employees, day laborers, and any “shared” employees (that are working for two different employers, including the one counting). These would be the employer’s joint employees.
This sum is usually the number of relevant employees for determining whether the FFCRA applies to an employer.
Absent the integrated employer test (see question 6), if a W-2 employer still has fewer than 500 employees after adding in joint employees, that W-2 employer will still have to comply with the FFCRA. For example, suppose a parent company with 50 employees has two subsidiaries (Company A and Company B). Each has its own EIN and each pays its own employees. Company A has 300 employees, but uses 190 temporary employees. Approximately 15 of the parent company employees regularly work for and provide support for Company A. Company A’s total, therefore is 505 employees. It does not have to comply with the leave provisions of the FFCRA.
However, Company B is much smaller. It has only 150 employees. And, it does not use nearly as many temporary workers. The parent company shares some of its employees who regularly work for Company B, but not enough for the total count to be 500 or more. Company B and the parent company will need to comply with the leave provisions of the FFCRA, unless the parent company, Company A, and Company B are considered an integrated employer. (See question 6 below for a discussion on the integrated employer test.)
- A2. Employers should count their employees when the employee’s leave is to be taken. This means if an employer is hovering around 500 employees, it will need to keep a close watch on its employee count. It also means that if, at the time the employee needs leave, the employer has 500 or more employees, but then the headcount subsequently drops and the employee still needs the leave, the employer is now a covered employer and will need to comply. The reverse, however, is not true. If an employee needs leave, and the employer has less than 500 employees when they begin the leave, a subsequent increase in employee headcount will not affect that employee’s right to continue on the leave.
A3. Congress has the power to pass the FFCRA pursuant to the commerce clause of the United States Constitution, which limits the FFCRA’s reach to only those employers operating in interstate commerce. Governmental agencies are assumed to affect commerce. For private employers, “commerce” means “any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce, and include ‘commerce’, and any ‘industry affecting commerce’, as defined in paragraphs (1) and (3) of section 501 of the Labor Management Relations Act of 1947. . .” Based on examples provided by the National Labor Relations Board (NLRB), these provisions operate to exclude:
- Retailers with a gross annual volume of business under $500,000 (“This includes employers in the amusement industry, apartment houses and condominiums, cemeteries, casinos, home construction, hotels and motels, restaurants and private clubs, and taxi services.”)
- Note: Shopping centers and office buildings have a lower threshold of$100,000
- Non-retailers are excluded if “the amount of goods sold or services provided by the employer out of state (‘outflow’) or purchased by the employer from out of state (‘inflow’)” (including indirectly, “passing through a third company such as a supplier”) is less than $50,000 per year
- Channels of commerce (“trucking and shipping companies, private bus companies, warehouses and packing houses”) with less than $50,000 in gross annual volume
- “Hospitals, medical and dental offices, social services organizations, child care centers and residential care centers with a gross annual volume of” less than $250,000 Nursing homes and visiting nurses associations with less than $100,000 gross annual volume
- “Private and non-profit colleges, universities, and other schools, art museums and symphony orchestras” the threshold is $1 million.”
Of note, however, federal contractors at any level are within NLRB jurisdiction, which would likely mean they are covered by the FFCRA. Also, the NLRB “will not assert jurisdiction over employees of a religious organization who are involved in effectuating the religious purpose of the organization, such as teachers in church-operated schools.” The NLRB “has asserted jurisdiction over employees who work in the operations of a religious organization that did not have a religious character, such as a health care institution.” It is unclear, however, whether this broad interpretation is because the NLRB believes religious organizations do not affect “commerce.”
- Retailers with a gross annual volume of business under $500,000 (“This includes employers in the amusement industry, apartment houses and condominiums, cemeteries, casinos, home construction, hotels and motels, restaurants and private clubs, and taxi services.”)
- A4. Yes, if they are working in a U.S. territory. However, if they are working in another country, then they do not count towards the total.
A5. Yes, employers are required to count all temporary employees in their total, even if paid by a temporary services agency.
It is possible that the temporary staffing agency and the client company may have different statuses under the FFCRA. For example if the staffing agency has over 500 employees, it would not be covered under the FFCRA. But if its customer has less than 500 employees, it would be covered under the FFCRA. If the two entities are joint employers of a particular worker, the customer/employer would be obligated to provide leave to the employee under the FFCRA. The DOL states in its FFCRA Q&As, “[t]o determine whether the second employer exercises such control [to be a joint employer], the Department of Labor would consider whether it exercises the power to hire or fire you, supervises and controls your schedule or conditions of employment, determines your rate and method of pay, and maintains your employment records.” To process the paid leave and recover the tax credit, this may require the customer/joint employer to collect documentation that it would not normally keep on a temporary employee (like a leave request form).
Moreover, temporary staffing agencies should note that if a client provides temporary employees with EPSLA leave as a joint employer, the temporary staffing agency is prohibited from discharging, disciplining, or discriminating against employees taking such leave, even if the temporary staffing agency is not required to provide EPSLA leave. Similarly, if a client provides EFMLEA leave as a joint employer, the temporary staffing agency is prohibited from interfering with the employee’s ability to take leave and from retaliating against employees for taking such leave, even though it is not required to provide EFMLEA leave.
A6. The DOL is applying the FMLA’s integrated employer test to both the EFMLEA and the EPSLA. This test, if met, means a parent company and its subsidiaries would aggregate their employees into one headcount, even if they have different EIN numbers. In short, the companies would be viewed as one employer – a single enterprise. A parent company and its smaller subsidiaries are considered integrated employers when, on balance, the following four factors suggest they should be integrated:
- Whether the companies operate under common management
- The amount of interrelation between operations
- The amount of centralized control of labor operations
- Note that this is the most important factor.
- Relevant considerations include whether both companies use the same handbooks, have common policies and procedures, and maintain common management of hiring and firing decisions and centralized human resources departments, etc.
- The degree of common ownership and financial control
- This is viewed as the least important factor.
If an employer claims that it is an integrated employer to get over the 500-employee threshold, and it is wrong, then it is denying leave to employees who may be entitled to it. If the employer is actually an integrated employer with 500 or more employees and offers its employees leave under the FFCRA anyway, it may be denied the tax credits provided under the law, because only employers of less than 500 employees get the tax credits associated with the leave. Thus, making mistakes using the integrated employer test can be risky.
A7. The FFCRA amends the FMLA to grant emergency FMLA leave when an employee is needed to care for a son or daughter when the need is related to a public health emergency (PHE) that results in a school closure, place of care closure, or unavailability of the son or daughter’s normal childcare provider. Of note, the leave offered here is the same as the leave provided for under the EPSLA’s leave entitlement for school and childcare closures (see question 35).
Here is more information and relevant definitions related to this leave:
- The leave must be taken between April 1, 2020, and December 31, 2020. Leave provided prior to April 1, 2020, will not count as EFMLEA leave. (See questions 42 and 48.)
- “Son or daughter” means a minor (or an adult who is 18 or older that is incapable of self-care because of a mental or physical disability) and the employee is his or her parent by virtue of (1) biology; (2) adoption; (3) being a foster parent; (4) being a legal ward; or (5) standing in loco parentis (i.e., the individual provides day-to-day care and financial support).
- Needed to care for means there is no other suitable person available to care for the son or daughter during the leave period (which, pursuant to the Internal Revenue Service (IRS) guidance, the employee should state in writing).
- Of note, the IRS in its guidance indicates that if the child is over 14, the employee should explain that special circumstances exist requiring the employee to provide care.
- The leave is offered to employees who are able to work (including telework, if offered) but for needing to care for the son or daughter.
- If telework is offered, the employee should explain why he or she is unable to telework.
- “School” means an elementary school or secondary school (up to grade 12). (Note, the DOL has stated that a school that is offering only virtual learning for a particular period of time or a particular student is still closed for purposes of the FFCRA for that period of time and/or with respect to that student.)
- “Place of care” means the physical location where care is provided while the employee is normally working. Examples are day care facilities, preschools, before- and after-school programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.
- “Child care provider” means a provider who receives compensation for providing child care services on a regular basis, including a center-based provider, a group home child care provider, or other licensed child care provider. But, it can also mean someone who is not normally compensated or licensed if it is a family member or friend (such as a neighbor) who regularly cares for the employee’s child.
- The declaration of a public health emergency (PHE) can be made by the applicable federal, state, or local authorities
- If a school is providing in-person education on only a part-time basis or using a hybrid schedule combining in-person instruction on some days and virtual learning other days, the school is deemed to be “closed” on the days that the child is not scheduled to attend in person and the employee may use leave under the FFCRA on those virtual learning days.
- The DOL’s updated rules provide that an employee using leave under the FFCRA to care for a child whose school is operating on a hybrid schedule, i.e., in which instruction is conducted in person on some days and times but virtual on other days and times may use leave on this hybrid schedule (and does not require the employer’s agreement to the hybrid schedule).
- If a parent has the option to choose between sending his or her child to school in-person or attending virtually, and the parent elects virtual learning, the school is not considered “closed” and EFMLA leave is not available. (If a doctor recommends that the student stay home because of an underlying health condition, the employee may be eligible for two weeks’ of EPSL based on the quarantine recommendation.)
Employers may want to keep in mind that the other provisions of the FMLA are still in effect. A normally covered employer (that has greater than 50 employees in 20 or more calendar weeks) with normally defined eligible employees (who have worked for 1 year, worked for 1,250 hours in the year preceding leave, and worked at a worksite that has 50 or more employees within 75 miles) also needs to analyze requests for leave related to COVID-19 under the normal provisions of the FMLA (i.e., an employee’s serious health condition or an employee’s need to care for a first-degree relative with a serious health condition).
- A8. For EFMLEA, any employee who has been employed (been on payroll) for the 30 calendar days prior to the leave (including any time worked for the company as a temporary employee) is eligible to take EFMLEA leave. If the employee was laid off or otherwise discharged by the employer on or after March 1, 2020, and rehired or otherwise reemployed by the employer on or before December 31, 2020, the employee will be eligible provided the employee was on the employer’s payroll (plus any time worked as a temporary employee for the employer) for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise discharged.
- A9. The employee must have been on payroll (again, any time worked as a temporary employee for the employer also counts as being on payroll) for 30 calendar days, no matter how many days he or she worked.
A10. Under the FFCRA, Congress specifically stated that an employer “may elect to exclude” health care providers and emergency responders from the application of the EFMLEA and the EPSL. It is important to note that the “health care provider” or “emergency responder” is the employee, not the employer. Therefore, under current regulations, employers have the option of giving EFMLEA or EPSL to healthcare providers and emergency responders. Moreover, the language of the FFCRA appears to permit employers to make case-by-case determinations. The DOL has confirmed in its updated Q&As that, “[f]or example, an employer may decide to exempt these employees from leave for caring for a family member, but choose to provide them paid sick leave in the case of their own COVID-19 illness.”
Note, the FFCRA also gives the DOL the right to issue regulations deeming “health care providers” and “emergency responders” ineligible to take the leave, which would mean these employees may not get the leave at all. The DOL did not do that. Instead, the DOL defined the relevant terms.
Under the EPSLA, Congress also gave the DOL the right “to exclude certain healthcare providers and emergency responders from the definition of employee under [the EPSLA] including by allowing the employer of such healthcare providers and emergency responders to opt out.” (Emphasis added.) The DOL appears to have done neither. It defined the terms and left the decision to exclude health care providers and emergency responders up to employers.
A11. The FMLA defines the term “health care provider” as “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or . . . (B) any other person determined by the Secretary to be capable of providing health care services.” According to the DOL, these are still health care providers for purposes of certifying certain types of leave under the EPSLA, but it is not the definition the DOL is using for purposes of deciding which employees may be exempted from getting leave under the FFCRA. For purposes of which employees an employer may exclude from the EFMLEA and/or EPSLA, the definition from the new temporary regulations, updated in response to a decision by a court in Southern District of New York, is as follows:
Any other Employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.
826.30(c)(1)(B). The rules clarify that:
- “Diagnostic services include taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.”
- “Preventive services include screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.”
- “Treatment services include performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.”
- “Services that are integrated with and necessary to diagnostic, preventive, or treatment
services and, if not provided, would adversely impact patient care, include bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”
The DOL rule identifies employees who could qualify for the exemption, to include only:
- “Nurses, nurse assistants, medical technicians, and any other persons who directly provide” [diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care];
- “Employees providing services described . . . under the supervision, order, or direction of, or providing direct assistance to a person described [above]”;
- “Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.”
826.30(c)(1)(B)(ii). The DOL specifies that employees who do not provide “health care services” as described in the rules are not health care providers under the rule, even if their work affects the provision of health care services, including “IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.” The DOL also clarified that the location of an employee’s work does not determine whether the employee qualifies as a “health care provider.”
The DOL guidance advises to use the above definition judiciously to minimize the spread of COVID-19.
Of note, as of August 3, 2020, the United States District Court for the Southern District of New York struck down the DOL’s rule defining the term “health care provider.” The DOL responded to the court’s decision by updating its rules implementing the FFCRA, effective September 16, 2020, to provide the definition of “health care provider” described above. If an employee who did not meet the definition of “health care provider” under the FMLA was deemed exempt from leave under the FFCRA between August 3, 2020, and September 16, 2020, employers may want to consider whether leave was available under the law.”
A12. The DOL has defined “emergency responder” as follows under the temporary regulations:
Anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual whom the highest official of a State or territory, including the District of Columbia, determines is an emergency responder necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19
The guidance advises judicious use of this definition to minimize the spread of COVID-19. Of note, several members of Congress have complained that the DOL’s definition is too expansive and undermines the FFCRA.
A13. The DOL’s temporary regulations exempt small businesses with fewer than 50 employees, including a religious or nonprofit organization, from having to provide EFMLEA leave or the EPSLA leave for school or childcare closures (which mirrors the EFMLEA) when the imposition of such leave requirements would jeopardize the ongoing viability of the business. The DOL’s temporary regulations allow for this exemption if an authorized officer of the business has determined that:
- Providing the leave “would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;”
- “The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or”
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.”
Remember, this exception is only for the EFMLEA and EPSLA leave for situations in which the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions. To elect this small business exemption, the employer must document that a determination has been made pursuant to the above criteria. The employer is not required to send such documentation to the DOL, but should retain the records in its files for four years.
A14. It is both. The first two weeks (usually 10 days) of leave are unpaid. The FFCRA also includes EPSLA leave (for school and childcare closures) that covers the same event, which would cover the first two weeks unless the employee’s EPSLA leave has been exhausted for other reasons. The EPSLA provides for leave in a much wider array of scenarios related to COVID-19 than the EFMLEA does, so it could be exhausted before an employee seeks EFMLEA leave. Alternatively, the employee has the ability to substitute any other form of available paid leave he or she may have during the first 10 days. (See question 35 below.)
After the first two weeks of EFMLEA (Congress said 10 days, but the concept of days does not align with the FMLA), the EFMLEA offers paid leave for up to another 10 weeks (depending upon need and whether the employee has already exhausted some FMLA leave for other qualifying reasons). During the last 10 weeks of leave, an employer must pay the employee two-thirds of the employee’s average rate of pay (i.e., total compensation other than discretionary bonuses) over the past six months (see question 39), subject to a statutory cap of $200 per day and $10,000 total (the aggregate maximum of all paid FMLA leave under this provision). An employer may choose to pay more, but tax credits will be limited to the amount required. Employers with unions can use multiemployer collective bargaining agreement plans to pay out these amounts so long as the plans are amended to make the payments provided, and the employer funds the plan to pay for the leave.
A15. Yes. An employee can elect to use other paid leave that is applicable, although these other benefits would not be eligible for tax credits. An employer may not require an employee to use other paid leave provided by the employer during this two-week period. If EPSLA is not available, the initial two weeks of EFMLEA may be unpaid.
The leave an employee uses during the first 10 days must be applicable to the circumstances surrounding the leave request. Normal sick leave is probably not available for use if no one is sick. An employer can liberally amend its normal sick leave policy to make it applicable, but unless it does, regular sick leave is likely not available.
- A16. Basically, yes, but the rules are different for the EPSLA and the EFMLEA. If the EPSLA leave for school and childcare closures is being used for this purpose, it is paid at the same rate as EFMLEA leave. The DOL states that an employer and employee can agree to allow the employee to use another available paid leave to bring his or her pay to 100 percent of the employee’s wages. Once the EFMLEA starts providing pay (on the third week of an employee’s leave), however, the rule switches. That is, either the employer or the employee can demand a “true-up” by exhausting other forms of leave.
- A17. No, only EFMLEA leave is paid. The usual rules apply for traditional FMLA leave.
- A18. See questions 15 and 16.
A19. Except as discussed below, normal reinstatement rules apply to most employers. This means that an employee who is on FMLA leave is entitled to no greater protection from layoffs, furloughs, terminations, or otherwise than he or she would have had but for taking the leave. Therefore, provided an employer is not influenced by the employee being on leave, an employee could be furloughed or discharged if the employer implements a reduction in force.
If a layoff occurs, the employee’s ability to take leave (and the pay that comes with it) effectively ends and he or she may be entitled to unemployment benefits (which may be enhanced under state action to provide funds pursuant to an executive order). Additionally, because normal reinstatement rules under the FMLA apply, a “key” employee (that is, a salaried employee who is a top 10 percent wage earner within 75 miles) may be denied reinstatement if it would result in grievous economic injury to reinstate him or her. (See question 43 of the DOL’s Q&As on this topic.)
Additionally, Congress enacted certain rules for employers with fewer than 25 employees, which are more restrictive than classic reinstatement rules. Employers with fewer than 25 employees may not be required to reinstate an employee if all the following elements are true:
- “The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions” that affect employment and are caused by the public health emergency. (This exception is narrower than the general rule on reinstatement.)
- “The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced.”
- If the employee’s job is gone, and the employer cannot provide a substantially similar position, the employer must make reasonable efforts over a period of one year after the employee’s EFMLEA leave concludes to contact the employee if a substantially equivalent position becomes available.
A20. EFMLEA leave is just another form of FMLA leave, and the FFCRA lumps it together with all other forms of leave – so an employee gets a total of 12 weeks in the aggregate. Any FMLA leave an employee has already taken in the employer’s FMLA year reduces the amount of FMLA leave that employee has available under EFMLEA. Thus, EFMLEA leave is limited to 12 weeks, minus any other FMLA leave taken by an employee during the employer’s FMLA year. In addition, any amount of EFMLEA leave an employee uses will reduce the amount of FMLA leave an employee can take for other reasons during the applicable FMLA year.
EFMLEA leave is treated like FMLA leave, and the employee is entitled to use it while the law is in effect, provided other requirements are met. The FFCRA is currently set to expire on December 31, 2020, but any EFMLEA leave taken impacts the employee’s ability to take FMLA leave for other reasons thereafter (especially if the employer is using a rolling calendar year).
A21. FMLA leave is calculated in weeks. An employee has a total of 12 weeks to use (including other forms of FMLA) during the employer’s FMLA year. Employees who work for employers to which the FMLA does not apply are entitled to 12 weeks of EFMLEA leave. If an employee is taking EFMLEA leave continuously (not intermittently), the calculation is fairly simple: Count down the weeks of leave taken. In this scenario, the calculation rules below are really to determine how much to pay the employee.
For purposes of pay, and where the employee is taking EFMLEA intermittently, the employee’s hours are the “number of hours the eligible employee is normally scheduled to work on that workday” or workweek. If the employee has a work schedule that varies to such an extent that the employer is unable to determine the number of hours the employee would have worked, then the rules are as follows:
- If the employee has been employed for at least six months, the employee’s workweek is calculated by adding all hours worked to the leave the employee has taken for the last six months and dividing by 26 weeks (which is half of 1 year).
- If the employee has not worked for at least six months, employers should base the workweek on any agreement entered into at hiring, regarding the expected number of hours the employee was supposed to work. If there was no such agreement or understanding, then employers can calculate the employee’s workweek for the duration of time the employee has been employed using the above method.
A22. Employees may take intermittent leave under the FMLA for certain types of leave by statute. The FFCRA does not have a statutory designation about whether the leave may be taken intermittently, but the DOL states that intermittent leave (or reduced schedule leave) is permitted by agreement between the employer and employee if and only if intermittent leave is appropriate under the circumstances. Neither party can mandate or demand intermittent leave.
Importantly, the DOL has said that leave for a hybrid school schedule does not constitute intermittent leave:
[t]he employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent. . . . For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that).
Of note, the rule allowing intermittent leave by agreement would apply under the EPSLA for leave to care for a child home from school. But, for any other reasons for taking EPSLA leave, intermittent leave is not appropriate or permitted unless the employer offers telework, the employee accepts, and both agree to take the leave intermittently. Such an agreement can be memorialized by a writing, or the parties can come to a clear understanding. If the parties come to an agreement, intermittent leave can be taken in whatever increments work for both parties. Importantly, time worked is not leave, so any time worked will not count towards EPSLA or EFMLEA leave.
- A23. The FFCRA does not address this issue. The rule that narrows FMLA usage for spouses who work for the same employer is statutory and only applicable to certain types of FMLA leave. This rule does not apply to the EFMLEA or the EPSLA.
A24. The DOL and courts have consistently stated that leave given that is not FMLA leave cannot be considered FMLA leave. Accordingly, any leave that an employer gave an employee prior to when the FFCRA took effect does not count toward the total amount of leave to which the employee is entitled under the EFMLEA and EPSLA.
The same is true for an employer with 500 or more employees that wants to offer employees the functional equivalent of EFMLEA leave. Nothing stops a large employer from providing leave similar to EFMLEA leave (and some state and local laws require it), but it will not be eligible to receive the tax credits for providing that leave.
The same is true for the EPSLA. The FFCRA made very clear (as does the DOL guidance and regulations), that any leave provided to an employee prior to April 1, 2020, for reasons related to the six types of EPSLA leave will not count towards the sick leave entitlements offered by the FFRCA. The FFCRA and the regulations also make clear that EPSLA leave is in addition to any type of leave the employer is already providing, and the employer cannot comply with the EPSLA by using already existing leave.
- A25. See question 52.
A26. According to the DOL, furloughed employees do not qualify for leave regardless of whether the furlough started before April 1, 2020. An employee who is furloughed, even if the furlough is considered temporary, will not be entitled to take leave once furloughed. The DOL’s position is that the EPSLA and EFMLEA are designed to cover hours the employee is expected to work. If an employee is not expected to work (because of a layoff, furlough, temporary business closure, or otherwise) the employee does not need leave due to an FFCRA-covered reason and thus is not entitled to leave under the law.
Of note, as of August 3, 2020, the United States District Court for the Southern District of New York struck down the DOL’s rule that employees on furlough, for whom work is not available, are not eligible for leave under the FFCRA. The DOL responded to the court’s decision by updating its rules implementing the FFCRA, effective September 16, 2020, to make clear that employees are not eligible under any of the bases for FFCRA leave, if the employer does not have work available for the employee. If an employee who was furloughed requested leave under the FFCRA between August 3, 2020, and September 16, 2020, employers may want to consider whether leave was available under the law for that time period.
- A27. The penalties for failure to adhere to the provisions of the amendment are the same as those under the FMLA. Both companies and individuals can be sued by private individuals affected or by the DOL. However, the FFCRA includes a provision (section 3104) that states that an employer that does not meet the normal covered employer test under the FMLA (i.e., an employer that does not have 50 or more employees within 20 or more workweeks during this calendar year or last calendar year), is not subject to private civil actions by employees. However, these employers would be subject to private civil actions under the jurisdiction of the DOL, which could bring an enforcement action for violations.
A28. Yes. The DOL has stated in its Q&As that an employee may be eligible for leave under the FFCRA to care for a child if, for example, the employee determines that he or she has not “been able to care effectively for the children while teleworking” or to allow a spouse to work or telework.
Employers may “ask the employee to note any changed circumstances . . . as part of explaining why the employee is unable to work.” This is arguably required to substantiate the leave, because leave under the FFCRA is not available if the employee is able to telework. However, the DOL notes that employers should exercise caution in making such inquiries to avoid denying leave inappropriately, which could give rise to a claim of interference with the employee’s rights.
A29. Yes. When school is only available virtually and the child cannot attend in person, the FFCRA would apply. This may be the case if a school is providing in-person education on a reduced schedule, part-time basis, or a hybrid schedule. An employer’s agreement is not required for employees to use leave on such a hybrid schedule. However, if the school is open but an employee elects a virtual option, the DOL has confirmed in its Q&A that EFMLA leave would not be available, because the school is not closed.
The IRS guidance regarding tax credits under the FFCRA requires employers to maintain a statement from the employee identifying “the name of the school that has closed or place of care that is unavailable.” So, to substantiate the claim for a tax credit, if an employer knows that a summer program has ended or a school or child care provider has reopened, it may want to ask the employee to complete a new request form to identify the provider that is unavailable for the school year.
- A30. See questions 1 and 3-6.
- A31. See questions 10-12.
A32. See question 13. The small business exemption applies to the EPSLA only in the limited context of leave when the employee is caring for a son or daughter whose school or place of care is closed, or if the child care provider is unavailable due to the COVID-19 outbreak. (See question 37.)
Employers that meet the qualifications for the small business exemption described in question 13 above must nevertheless offer the other types of leave available under the EPLSA and must provide the required notices. (See question 51.)
- A33. No. See question 4.
- A34. An employer with 500 or more employees can offer paid leave and often must do so given state and local requirements. However, employers with 500 or more employees are not required to provide EPSLA leave under the act and are not eligible for tax credits provided by the FFCRA.
- A35. See question 6.
A36. In short, all employees of covered employers who are not subject to the health care worker emergency responder exemption or the small business exemption are eligible, regardless of length of employment. Unlike the EFMLEA, the EPSLA does not have a requirement that employees have worked a specified number of calendar days, fulfilled an hours-of-service requirement, or fall within a geographic area prior to eligibility.
The EPSLA is also different than other state and local paid sick leave laws that typically have a waiting period prior to employees’ eligibility to use accrued paid sick leave. Likewise, unlike many state and local paid sick leave laws, EPSLA leave does not provide different amounts of available sick leave based upon the size of a covered employer.
A37. Starting on April 1, 2020, employers are required to offer employees paid sick leave pursuant to the EPSLA. Any leave an employer provided to its employees prior to April 1, 2020, does not count as leave provided under the EPSLA. (See questions 13, 32, and 46 of the DOL’s Q&As.) The EPSLA provides eligible employees with EPSLA leave in the number of hours that are equivalent to 2 weeks (80 hours for full-time employees) of paid leave for any of the following reasons:
- Quarantine/Isolation Order—when the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Note, if the order is a closure order or a “shelter in place” order, and the employer is deemed an essential business, then the order may not be stopping the employee from working.
- If the order is a closure order and the company must shut down business operations (meaning that the company does not have a job for employees to perform), then employees are not entitled to EPSLA leave. Those employees may, however, be eligible to receive unemployment benefits.
- The type of order that might trigger this provision would be, for example, a government issued mandatory quarantine of all persons who are traveling from another country. In that case, an employee who has traveled internationally and therefore must self-quarantine, would be eligible for leave under this provision, because the employer is still open and has a job for the employee to perform, but the employee is unable to do it because of the order.
- Self-Quarantine—when the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- This provision is applicable when a healthcare provider (as defined by the FMLA) advises an employee to self-quarantine based on the belief that
- the employee has COVID-19;
- the employee may have COVID-19;
- the employee is particularly vulnerable to COVID-19; and
- but for the healthcare provider’s advice, the employee would be able to work, or telework (if offered).
- This provision is applicable when a healthcare provider (as defined by the FMLA) advises an employee to self-quarantine based on the belief that
- COVID-19 Symptoms—when the employee is experiencing symptoms such as a fever, dry cough, shortness of breath, or other COVID-19 symptoms recognized by the U.S. Centers for Disease Control and Prevention and is seeking a medical diagnosis;
- Under this provision, any EPSLA leave available is limited to the 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. Employees with a positive test result may be eligible for EPSLA leave due to a self-quarantine recommended by a healthcare provider or an isolation or quarantine order from the government. (See “Self-Quarantine,” above.)
- Care for Others—when the employee is caring for an individual who is subject to a quarantine or isolation order or whose health care provider has advised the individual to self-quarantine due to concerns related to COVID-19;
- “Individual” means an immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation the that employee would care for that individual when quarantined or self-quarantined.
- The employee may not take leave under this provision unless, but for the need to care for the individual, the employee would be able to work (or telework if offered).
- School/Childcare Closure—when the employee is caring for a son or daughter because the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
- Note that this is the only provision that overlaps with the EFMLEA.
- See question 7, above, for the requirements for taking the leave.
- Similar Conditions—when the employee is experiencing a “substantially similar condition” as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
- These conditions have not been identified yet.
Note, employees get only one tranche of leave. If an employee takes 80 hours of sick leave for one reason, he or she will not be able to take addition leave for a different reason. (Question 9 of the DOL’s Q&As cover this topic.) Additionally, if an employee takes EPSLA leave while working for one employer, he or she will not get it should the employee go to work for a different employer.Q36. May employees be required to use other paid leave before EPSLA leave under FFCRA, or can the employer use already existing paid sick leave to comply with the EPSLA?
- Quarantine/Isolation Order—when the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- A38. No. An employer may not require employees to use other paid leave before they use EPSLA leave.
- A39. Consistent with prior state and local paid sick leave requirements, the FFCRA prohibits employers from requiring that employees to search for or find a replacement employee to cover hours during which they use EPSLA leave.
A40. See question 22. Intermittent leave is available only by agreement unless the Southern District of New York opinion applies to void the DOL rule, and only during telework or for leave to care for a child whose school or childcare provider is closed due to COVID-19. The DOL’s temporary regulations clarify that intermittent leave under the EPSLA is subject to three primary considerations: (1) the FFCRA’s objective in slowing the spread of COVID-19; (2) an agreement between the employer and the employee concerning intermittent leave (i.e. employers are never required to allow intermittent leave); and (3) whether the employer allows or directs the employee to telework.
Employees who telework
If an employer directs or allows an employee to telework and the employer and the employee agree, the employee may take EPSLA leave intermittently while teleworking because the employee presents no risk of spreading COVID-19. On the other hand, employees who do not telework may take EPSLA leave intermittently, upon agreement, only where there is minimal risk of spreading COVID-19 at the employer’s worksite. As such, employees who do not telework may take EPSLA leave only to care for a son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19. (See question 35 above.) In this context, the absence of confirmed or suspected COVID-19 in the employee’s household reduces the risk that the employee will spread COVID-19 by reporting to the employer’s worksite while taking intermittent paid leave. This is not true, however, when the employee takes paid sick leave for other qualifying reasons.
Employees who do not telework
Employees who report to an employer’s worksite may not take EPSLA leave intermittently, even with the employer’s agreement, if the leave is taken for any EPSLA leave purposes other than to care for a son or daughter whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19. (See question 39.) The reason is that the other EPSLA leave purposes create an unacceptably high risk of further COVID-19 spread. As such, employees who continue to report to an employer’s worksite, once they begin taking EPSLA leave for any qualifying reason or reasons, must exhaust available EPSLA leave or may return only when the employee no longer has a qualifying reason for taking EPSLA leave.
Leave for Hybrid School Schedule
The DOL has said that if a “child’s school, place of care, or child care provider were closed or unavailable on only Monday, Wednesday, and Friday, as opposed to the entire week, then [an employee] would not need to take intermittent leave if working on the schedule in the example above. This is because each day of closure or unavailability is a separate reason for leave, and thus [the employee] would not need to take leave for a single reason intermittently. As such, [an employee] would not need employer permission to take paid leave on just the days of closure or unavailability.”
A41. If an employee is eligible for EPSLA leave due to his or her own inability to work (i.e., for reasons 1-3 in see question 37), the employer must compensate that employee for any paid sick time he or she takes at the higher of the employee’s average regular rate, the federal minimum wage, or the local minimum wage. To determine the employee’s average regular rate, employers can use the Fair Labor Standard Act (FLSA) methods (subject to the six-month rule below) to determine an employee’s regular rate of pay (i.e., combine his or her hourly wage or salary, plus any non-discretionary wages, such as commissions, tips, piece rates).
An employer should look back over the past six months to determine the employee’s average regular rate. If the employee has not been working for six months, the employer should look back over the employee’s entire employment period. Once the employer determines the employee’s total compensation, it can divide that number by the number of hours the employee worked to determine the employee’s wages for purposes of the regular rate of pay. This amount, however, is capped at $511 per day ($5,110 in the aggregate).
For employees absent from work to care for others (reasons 4-6 in question 37), employers must compensate them for any paid sick time they take at two-thirds their average regular rate of pay. This amount, however, is capped at $200 per day ($2,000 in the aggregate). Unlike the amendments to the FMLA in the FFCRA, the EPSLA does not contain any provision for an initial period of unpaid leave.
Full-time employees—i.e., those scheduled to work 40 hours or more per week (see questions 9 and 48 of the DOL’s Q&As) are eligible for 80 hours of pay. Employees working or scheduled to work less than 40 hours per week are eligible for the number of hours they typically work or are scheduled to work in a two-week period. (See questions 9 and 49 of the DOL’s Q&As.)
If these employees’ normally scheduled hours are unknown, or if their schedules vary, employers should use a six-month average to calculate their average daily hours. If the employee has not been employed for six months, employers may use the number of hours the employee agreed to work upon hiring or, if there was no such agreement, employers may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment. (See question 5 of the DOL’s Q&As.) However, if the employer reduces an employee’s scheduled hours (or furloughs the employee temporarily) due to a lack of work, the employee may not be paid for hours the employee is not scheduled to work. (See question 28 of the DOL’s Q&As). In these situations, for purposes of EPSLA leave, the employee’s leave is an hours bank. The hours are not adjusted if the schedule is reduced, but the employee can only use those hours for work actually scheduled.
Because EPLSA leave is an hours bank, if an employee misses overtime work that he or she would have otherwise worked but for the leave, his or her EPSLA leave hours bank will be reduced and the amount of pay for the hours missed must be provided. (See question 6 of the DOL’s Q&As.)
- A42. See Question 41.
A43. The FFCRA requires employees to give employers notice of their request to take leave as soon as practicable. If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave. A spouse, adult family members, or other responsible party can give notice. The contents of the notice should be enough to give the employer knowledge that the employee may qualify for leave.
Pursuant to the DOL’s updated rules, effective September 16, 2020, notice of the need for EPSL may not be required in advance, and may only be required after the first workday for which an employee takes leave. After the first workday, it is reasonable for the employer to require notice as soon as practicable.
A44. The DOL’s updated rules, effective September 16, 2020, provide that documentation in support of leave under the FFCRA should be provided “as soon as practicable, which in most cases will be when the Employee provides notice [of the need for leave].” The DOL’s guidance in connection with its temporary rule provides that documentation in support of a request for leave under the FFCRA “must include a signed statement containing the following information: (1) The employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.” The employee must provide additional documentation depending on the qualifying reason for the leave. The DOL went on to explain, “[a]n employee requesting paid sick leave [based on a government quarantine or isolation order] must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject. An employee requesting paid sick leave [based on a health care provider’s recommendation to quarantine] must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.”
An employee requesting paid sick leave to care for an individual 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 to self-quarantine, depending on the precise reason for the request. An employee requesting to take paid sick leave or expanded family and medical leave to care for his or her child must provide the following information: (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave. The DOL temporary rule also allows employers to collect any other documentation needed to substantiate a claim for a tax credit with the IRS. The IRS guidance provides that “with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.”
Employers need to retain documentation in support of leave or tax credits under the FFCRA for four years.
The DOL has stated in its Q&As that employers may not require employees to provide further documentation or certification from a health care provider to confirm that he or she sought a diagnosis or treatment for COVID-19 symptoms. The employer can only require the written information identifying the need for leave and the date for a test or doctor’s appointment.
Note, however, that if an employee is requesting another type of leave, like FMLA leave or another paid leave benefit concurrently, employers may require the documentation typically requested in connection with those leaves.
- A45. EPSLA leave under the FFCRA is in addition to any paid sick leave already offered by an employer (including paid sick leave available under state and local laws). Even if an employer has a generous paid sick leave policy offering more than the 80 hours required by the act, the act requires employers to offer employees additional EPSLA leave for COVID-19 purposes. (See question 32 of the DOL’s Q&As.)
- A46. The DOL has adopted the FMLA’s restoration rules for EPSLA leave. (See question 19.) The FFCRA does not protect employees from layoffs, furloughs, etc. If an employer can show that an employee would not have been employed at the time reinstatement is requested, reinstatement is not required.
- A47. No. Prior state and local paid sick leave requirements typically include a requirement that at least some amount of unused paid sick leave carry over from one year to the next. However, that is not the case with EPSLA leave, which plainly states carryover is not required. Further, because the act sunsets at the end of December 2020, carryover would be inapplicable.
- A48. No. Consistent with prior state and local paid sick leave requirements, the act does not require employers to pay out unused EPSLA leave to eligible employees at termination, resignation, retirement, or other separation from employment.
A49. Employers that do not provide EPSLA leave under the FFCRA to eligible employees are subject to damages and penalties as under the FLSA for minimum wage violations, including unpaid wages, an additional equal amount as liquidated damages, and attorneys’ fees and costs.
Employers that unlawfully discharge, discipline, or otherwise discriminate against an eligible employee under the FFCRA are subject to injunctive relief under the FLSA, including reinstatement, as well as damages and penalties for unpaid wages, an additional equal amount as liquidated damages, and attorneys’ fees and costs.
Provisions Applicable to Both the EFMLEA and the EPSLA
A50. The FFCRA went into effect on April 1, 2020. Both the EFMLEA and EPSLA went into effect on April 1, 2020, and will expire on December 31, 2020.
Note, the Southern District of New York vacated certain of the DOL’s rules implementing the FFCRA as of August 3, 2020, and the DOL issued new rules effective September 16, 2020. These rules relate to the use of leave during a furlough, the use of intermittent leave, the timing of providing documentation in support of leave, and the definition of “health care provider” for purposes of the exemption from FFCRA leave.
- A51. No. (See question 13 of the DOL’s Q&As.) Additionally, employers are not entitled to tax credits for leave given prior to April 1, 2020.
A52. The FFCRA requires eligible employers to maintain, in a conspicuous location, where notices to employees are customarily posted, in all work locations, a notice prepared or approved by the Secretary of Labor. In addition, and particularly given the prevalence of employees working remotely due to COVID-19, employers may provide notice through email or direct mail to employees or by posting on an employee-facing intranet or external website. The model notice posting applicable to private employers is now available in English, Spanish, and Korean. The DOL permits emailing the poster to those already teleworking.
Of note, employers with fewer than 500 employees who employ all healthcare providers and emergency responders are still covered employers and must post the notice. Additionally, employers of fewer than 50 employees who intend to deny leave for school/childcare closures are also still covered employers. So, they must still offer employees leave for quarantines and isolation orders, self-quarantines, employees experiencing COVID-19 symptoms, employees caring for others, and employees experiencing similar symptoms as one would experience if he or she had COVID-19 (see question 37), and must post or issue a notice.
- A53. Fortunately, payments for EPSLA and EFMLEA leave and benefit costs during periods of leave under the FFCRA are subject to tax credits. Each quarter, employers are entitled to a refundable tax credit equal to 100 percent of the qualified EPSLA and EFMLEA leave wages paid to eligible employees. Currently, it does not appear employers will be entitled to any tax credits for any EPSLA leave payments made prior to the effective date of the EPSLA. Note that the IRS has provided guidance on tax credits under the FFCRA.
A54. The FMLA benefit protections are in place, and employers should follow them for EFMLEA leave. (See question 30 of the DOL’s Q&As.) The DOL indicates that employee benefits should be maintained while on EPSLA leave as well. (See question 30 of the DOL’s Q&As.)
If the employee already has healthcare, the employer should treat the employee as if he or she is working. For employees who are not yet eligible for benefits (because they were recently hired, for example), employers should count the time away from work towards eligibility if the employee is on leave for his or her health condition. (See question 30 of the DOL’s Q&As citing nondiscrimination rules under the Health Insurance Portability and Accountability Act (HIPAA).) For reasons other than the employee’s own health condition, HIPAA non-discrimination rules do not apply, and the FMLA discusses benefits being “maintained.” So, for EPSLA leave involving leave to care for others, and for EFMLEA leave, employers should follow the plan’s eligibility rules.
Ogletree Deakins will continue to monitor and report on developments with respect to COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.