Last updated on March 30, 2020 to conform with the U.S. Department of Labor’s (DOL) guidance dated March 28, 2020.
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 needed for the care of children out of school because of COVID-19 and also makes weeks 3 through 12 of its effective period paid leave; (2) creates 2 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 separate and distinct sections. In many respects, they will 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, governmental agencies, and schools). These employers need to be ready to provide these leaves starting 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 once the FFCRA is effective.
Answer 1. Both EFMLEA and EPSLA apply to governmental agencies (federal government employees may be excluded from the FMLEA, and some federal employees may be excluded from the EPSLA) and schools. As for private companies, the new laws apply only to employers affecting interstate commerce with fewer than 500 employees in aggregate (this includes non-profits and religious organizations according to the DOL FAQs at question 58). This includes employers that have less than 50 employees (see question 12 below). For purposes of the FMLA, this is a new way of defining a covered employer (traditionally, it requires an employer to have 50 or more employees over 20 or more calendar weeks in one year). The federal sick leave requirement is entirely new.
To count employees, an employer (meaning a W-2 employer with an Employer Identification Number (EIN) should add the numbers of its W-2 employees, temporary employees (who are working under a different employer’s EIN), leased employees (who are working under a different employer’s EIN), and any “shared” employees (that are working for two different employers, including the one counting). Absent the integrated employer test (see question 5 below), this sum is the number of relevant employees. The additional employees added to an employer’s total would be considered joint employees. In a joint-employer situation, both employers remain separately and jointly liable. This means each individual employer has a separate headcount (with shared employees included in both totals).
Neither act defines when to measure the employee headcount, but, according to question 2 of the DOL’s FAQs, employers should do the count “at the time your employee’s leave is to be taken.”
- A2. Congress has the power to pass the FFCRA pursuant to the commerce clause of the constitution. That means its reach to specific employers requires that employers be operating in interstate commerce. Therefore, the definition of employer includes only those operating in interstate commerce. Of note, governmental agencies are assumed to affect interstate commerce.
- A3. Traditionally, under the FMLA (and the FLSA), only employees working in the United States or in one of its territories are entitled to FMLA and FLSA protection. The sick leave law borrows heavily from the Fair Labor Standards Act (FLSA) for its definition of both “employer” and “employee.” Question 2 of the DOL’s FAQs is consistent with this, stating that the laws only apply to U.S. employees (including territories).
- A4. Traditionally, under the FMLA, temporary employees do count toward an employer’s total. The same would likely be true under the new sick leave law.
A5. There is no clear answer to this question. The FMLA regulations recognize the “integrated employer test,” which was included in the FMLA to aggregate employee counts (for determining employer coverage and employee eligibility). Of note, generally the integrated employer test works to the employer’s disadvantage, but here, aggregating would actually work to exempt many employers. Because the FMLA portion of the FFCRA works to amend the FMLA, and the integrated employer test is a readily recognized concept in the FMLA, the integrated employer test applies (according to question 2 of the DOL’s FAQ #2). The DOL does not control the Department of Treasury, which is responsible for tax credits, however. So, a conservative approach (where an employer does not aggregate, but should have) is not without risk.
Under the FMLA, a parent company and the 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 (which 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/firing decisions and centralized human resources departments, etc.
- The degree of common ownership and financial control
The DOL in its guidance has also adopted the integrated employer test for employee counts under EPSLA. (See question 2 of the DOL’s FAQs.)
A6. The FFCRA provides for an amendment to the FMLA to grant emergency FMLA leave to care for a minor child when the need is related to a public health emergency (PHE). The following must be satisfied in order for the employee to qualify for EFMLEA 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 FMLA leave.)
- The employee must be unable to work or telework because of a need to take care for a minor child whose school or daycare is closed. An employee may also be unable to work because the normal paid care providers of his or her son or daughter (including adult children rendered incapable of self care because of a disability) are unavailable because of COVID-19. Question 40 of the DOL’s FAQs discuss this issue. (Note that the DOL made clear that they will use the FMLA’s definitions of son and daughter, which includes adult children who have a disability. But, the EFMLEA states specifically that leave for school and daycare closures are only for minor children. This implies that the DOL is referencing care providers who are unavailable due to the COVID-19 crisis. There is nothing in the FFCRA to help employers determine when an employee is needed to care for the child. Nothing in the FFCRA appears to grant the employer the right to question whether others are available to care for the child. If an employer offers telework, and the employee is able to perform telework, then the need for leave may be avoided, but even if an employer offers, an employee may be able to claim that he or she nevertheless cannot work, and instead needs to take the leave. (This issue is covered in questions 18 and 19 of the DOL’s FAQs). Of note, the DOL states that an employee is not entitled to telework; it is the employer’s option whether to make telework available. (See question 17 of the DOL’s FAQs.)
- The employee must provide notice of the need for leave as soon as practicable. Failure to do so will cause a delay in when FMLA leave can start.
- The need to care for the minor child must be because of a “declared” PHE related to COVID-19 that has caused:
- the child’s school (elementary school or secondary school) to be closed;
- the child’s place of care to be closed; or
- the child’s normal childcare provider (a person paid for providing childcare on a regular basis) to be unavailable.
The declaration of a PHE can be made by the applicable federal, state, or local authorities.
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 one 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) may need 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).
- A7. Eligibility for EFMLEA leave is calculated differently than normal FMLA leave. An employee is eligible to take E-FMLA leave if he or she has been “employed” for at least 30 calendar days (this one criterion replaces all other eligibility requirements). “Employee” means those employed in the United States or a U.S. territory. (See question 38 of the DOL’s FAQs.)
A8. The act uses the word “employed.” The DOL has previously interpreted this to mean days or weeks on the payroll. Absent guidance from the DOL, the best interpretation would be to assume that Congress meant the employee has been on the company payroll for at least 30 calendar days, no matter how many days he or she worked. (See question 14 of the DOL’s FAQs.)
The act is silent on how far back an employer is to look to find the 30 days. Arguably, the 30 days would need to be the 30 days before the employee takes FMLA leave. However, the regulations under the FMLA took the normal eligibility language of “for at least 12 months by the employer with respect to whom leave is requested under Section 102” and interpreted it to mean 12 months within the past seven years. Absent some clarification from the DOL that it has a different interpretation of “at least 30 calendar days,” an employer may want to look back to see whether it employed the employee previously and add that to the 30-day total. Note too, time worked as a temporary employee for the covered employer would also count towards this already shortened total.
A9. There are two situations in which these particular workers may not be eligible for EFMLEA leave. The FFCRA says that the DOL can “issue regulations for good cause . . . to exclude certain health care providers and emergency responders.” No regulations have been issued on this topic.
But, another section states that employers of “healthcare providers” or “emergency responders” may deny EFMLEA leave (or EPSLA leave for school closures and childcare unavailability, but not for the other types of EPSLA leave). In Section 3105, it states, “An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of the provisions in the amendments made [in] this Act.” Thus, employers may need to think through the definitions of “health care provider” and “emergency responder.”
A10. 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, nurses are not included in this definition. The following are healthcare providers under subsection (B): doctors, podiatrists, dentists, clinical psychologists, optometrists, chiropractors (sometimes), nurse practitioners, nurse-midwives, clinical social workers, physician assistants, and Christian Scientist practitioners. The DOL in its guidance bifurcated the definition of healthcare provider under the FFCRA. For purposes of certifying health conditions, under the FMLA and the new EPSLA provisions for an employee’s leave for health concerns related to COVID-19, the traditional definition (above) remains undisturbed. (See question 55 of the DOL’s FAQs.)
Then, it expanded the definition considerably for purposes of deciding which employees could be denied EFMLEA and EPSLA leave for school closures and childcare unavailability. (Remember, the other reasons for taking EPSLA leave are NOT restricted for these persons). Those situations in which an employer may prohibit leave related to school closures, daycare closures, or care-provider unavailability as “healthcare providers” are as follows:
anyone employed at any 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 care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
(See question 56 from the DOL’s FAQs.)
The guidance advises to use the above definition judiciously to ensure that those trying to limit the outbreak have the personnel they need to continue to function. The guidance also leaves room for expansion. If a governor of a state determined a particular job or professions is an emergency responder, then that profession can be added to the definition.
A11. This phrase is novel to the FMLA, and it is undefined by the act. But, Congress clearly intended the carve-out to permit employers on the front lines of treatment, care, and public safety to be available. Consistent with that, the DOL has defined the term broadly and consistently with what it anticipates will be needed as the pandemic spreads in the United States:
. . . an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of [COVID-19] patients, or whose services are otherwise needed to limit the spread of COVID-19. This [definition] 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, 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.
(See question 57 of the DOL’s FAQs.)
The guidance advises judicious use of this definition to ensure that those trying to limit the outbreak have the personnel they need to continue to function. The guidance also leaves room for expansion. If a governor of a state determined a particular job or profession is an emergency responder, then that profession can be added to the definition.
A12. The DOL can exempt small businesses with fewer than 50 employees when the imposition of such leave requirements would jeopardize the viability of the business. To exempt certain small businesses, the DOL must “issue regulations for good cause . . . to exempt small businesses with fewer than 50 employees from the [leave requirements] when the imposition of such requirements would jeopardize the viability of the business.” Congress has given the DOL the authority to issue regulations without the normal notice and comment period. In the meantime, the DOL issued guidance (see questions 58 and 59 of the DOL’s FAQs) to small businesses (including religious and non-profit organizations with fewer than 50 employees) advising that if “an authorized officer of the business” determines one of three scenarios exist, then an employer is not required to provide leave to an employee needing to care for a child because of a school or daycare closure (or because the normal paid childcare provider is unavailable) because of COVID-19:
(1) providing the pay would result in business expenses exceeding available revenues, and would cause the small business to cease operating at a minimal capacity.
(2) permitting the absences would entail substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; OR
(3) result in there being insufficient workers available at the time and place needed to perform the labor or services provided by the employee, and these labor or services are needed for the small business to operate at a minimal capacity.
Of note, the exemption for employers with fewer than 50 employees applies only to leave related to school closures and childcare unavailability. It does not apply to other types of paid sick leave under the act.
A13. It is both. The first 10 days of leave are unpaid. The FFCRA also includes EPSLA leave that would theoretically cover these first two weeks unless they have been exhausted for other reasons. (See the Sick Leave section below.) The paid emergency sick leave provisions of the act permit leave in a much wider array of scenarios related to COVID-19, so it could be exhausted before an employee seeks leave under the FMLA portion of the FFCRA. (See question 31, below.) Of course, the employee has the ability to substitute (concurrently exhaust) any form of available paid leave he or she may have during the first 10 days.
After the first 10 days (really, Congress probably was thinking two weeks), EFMLEA leave for a PHE becomes paid (for up to another 10 weeks). An employer must pay the employee up to two-thirds of the employee’s regular rate of pay (an FLSA calculation, except this law uses a six-month average—see question 8 of the DOL’s FAQs) for EFMLEA leave. This amount is subject to both a ceiling and a floor. The ceiling is a cap of $200 per day and $10,000 total (the aggregate maximum of all paid FMLA leave under this provision). The floor is the applicable minimum wage (federal, state, and local). 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.
- A14. No, just E-FMLA leave. The usual rules apply for traditional FMLA leave. (See question 12 of the DOL’s FAQs.)
- A15. This practice is allowed if the employer and employee agree. Absent a regulation specific to E-FMLA leave, the normal regulations do not permit an employer to mandate a true-up to draw down other forms of paid leave. (See question 31, 32, and 33 of the DOL’s FAQs.)
A16. 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 under normal reduction in force. 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 FAQs.) Additionally, Congress enacted certain rules for employers with fewer than 25 employees, which are more restrictive than classic reinstatement rules.
According to that exception, employers with fewer than 25 employees may not be required to reinstate the employee under certain circumstances. In particular, an employer can deny reinstatement if its reason meets all the following elements:
- 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 E-FMLA leave concludes to contact the employee if a substantially equivalent position becomes available.
Hopefully, the DOL’s guidance and/or regulations on this topic will reconcile the traditional concepts of reinstatement with this more restrictive provision for employers with fewer than 25 employees. (See question 43 of the DOL’s FAQs.)
- A17. E-FMLA leave is limited to 12 weeks, minus any other FMLA leave taken by an employee during the employer’s FMLA year. EFMLEA leave is just another form of FMLA leave, and the FFCRA lumps it together with all other forms of leave in which 12 weeks of leave is provided. E-FMLA 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. Any amount of EFMLEA leave used will reduce the amount of FMLA leave an employee can take for other reasons during the applicable FMLA year. Moreover, 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. The FFCRA is currently set to expire on December 31, 2020, but any E-FMLA leave taken may impact the employee’s ability to take FMLA leave for other reasons thereafter (especially if the employer is using a rolling calendar year). (See questions 44 and 45 of the DOL’s FAQs.)
- A18. The language in the amendment is slightly different from the current FMLA regulations. Employers may want to use the “actual workweek method” for determining their employees’ FMLA usage. This requires that employers look at how many hours in a particular week an employee would have worked in order to determine the amount of FMLA leave. The amendment is basically trying to convey the same thing. The FFCRA says that the FMLA leave usage is calculated by using “the number of hours the employee would otherwise be normally scheduled to work.” It uses the term “hours,” but the FMLA uses workweeks and portions of workweeks. E-FMLA leave should be no different. (See question 28 of the DOL’s FAQs.) This includes missed overtime. Employers should keep in mind that for FMLA leave, they should use workweeks. If an employee is out for an entire week, missed overtime may not matter. If an employee is out for a partial week, it does. (See question 6 in the DOL’s FAQs.)
- A19. Intermittent leave under the FMLA is permitted for certain types of leave by statute. The employer may grant employees permission for other types of FMLA leave. The FFCRA’s leave 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 only. Neither can mandate or demand intermittent leave. (See questions 19 and 22 of the DOL’s FAQs.) Of note, the same rule would apply under the EPSLA for leave to take care of a child home from school. But, for other reasons, intermittent leave is not appropriate or permitted unless the employer offers telework, the employee accepts, and both agree to take the leave intermittently. (See question 21 of the DOL’s FAQs.).
- A20. 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. Presumably, therefore, spouses who work for the same employer can both take a full amount of E-FMLA leave.
A21. The DOL and the courts have consistently said that FMLA leave is FMLA leave, and leave given that is not FMLA leave cannot be considered FMLA leave. Any leave that was given prior to when the FFCRA takes effect probably will not count toward the total amount of leave. Employers can give as much leave to their employees as they deem appropriate prior to the FMLA provision taking effect, but they may not receive any credit for it under the FMLA.
The same is true for an employer with more than 500 employees who wants to give the functional equivalent of E-FMLA leave. Nothing stops a large employer from providing leave similar to E-FMLA leave, but it cannot count it against the employee’s leave entitlement, and it will not be eligible to receive the tax credits. (See question 34 of the DOL’s FAQs.)
A22. The statute and DOL regulations require an employer to provide notice to employees. Under the regulations, an employer must post a DOL-issued notice, and it must create an FMLA policy and distribute it to all employees. Additionally, the DOL states that if an employer has a handbook or a benefits manual, the FMLA policy must be incorporated in it.
Given: (1) the fact that the amendment to the FMLA has a sunset; and (2) the law is expanding the definition of covered employers (such that employers have between 1 and 50 employees), the DOL is likely to require notice but be practical about it. Any poster the DOL publishes will need to be posted, and an employer will need to, at a minimum, distribute the DOL poster to each employee saying it supplements their already existing policies (if they are already a covered employer).
- A23. According to the DOL, furloughed employees do not qualify for leave Regardless of whether the furlough started before April 1 or after. An employee who is furloughed, even if the furlough is considered temporary, will not be entitled to take leave once furloughed. (See questions 23, 24, 25, 26, and 27 of the DOL’s FAQs.)
- A24. 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. 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 employees would be subject to private civil actions under the jurisdiction of the DOL, which could bring an enforcement action for violations.
- A25. See questions 1 through 5 above.
A26. Just like EFMLEA leave, the DOL has the authority to issue regulations to permit employers of healthcare providers or emergency responders to exclude such employees from the paid EPSLA requirements. (See questions 9, 10, and 11 of the DOL’s FAQs). As was stated above in question 9, no regulations have been issued on this topic. The DOL in its guidance has issued a clear intent to create such regulations and permit employers to exclude those employees from taking EPSLA leave but currently only guidance has been issued.
In addition, the DOL may exempt small businesses with fewer than 50 employees in limited circumstances (namely, the DOL can relieve an employer from having to provide EPSLA leave for the school closures and childcare unavailability where these requirements would jeopardize the viability of a business). So, employers with fewer than 50 employees are awaiting DOL regulations that will explain when it can be relieved of the obligation to provide EFMLEA leave and EPSLA leave.
- A27. Unfortunately, the act does not specify whether to include foreign employees in the calculation of whether an employer has fewer than 500 employees. However, the FFCRA is borrowing heavily from the FLSA and specifically aligns the definition of “employee” with the FLSA. Without further guidance, the safest rule of thumb is follow the FLSA. If the FLSA applies to the employee (exempt or non-exempt) then they would get EPSLA leave. (See also question 3.)
- A28. An employer with 500 or more employees can offer EPSLA 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 act.
- A29. See question 5.
- A30. In short, all employees are eligible, regardless of length of employment. Unlike the EFMLEA, the EPSLA portion of the FFCRA has no requirement that employees have worked a specified number of calendar days, fulfilled an hours-of-service requirement, or a fall within a geographic area prior to eligibility. The act is also different than other state and local emergency paid sick leave (EPSL) laws that typically have a waiting period prior to employees’ eligibility to use accrued EPSL. Likewise, the act contains no distinction among covered employers based on employer size in terms of amount of available EPSL.
A31. Starting on April 1, 2020, employers are required to offer employees paid sick leave pursuant to the EPSLA. Anything given prior to April 1, 2020, does not count as leave provided under the EPSLA. (See question 11 of the DOL’s FAQs.) The act provides eligible employees with EPSL 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;
- Self-Quarantine—when the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- COVID-19 Symptoms—when the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- 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;
- School/Childcare Closure—when 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 (this is the only one that appears to overlap with E-FMLA);
- 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.
Note that the act does not define “individual” or “substantially similar condition.” Also note, employees get only one tranche of leave. If an employee takes 80 hours of sick leave for one reason, they will not have it for another if a different reason (such as those mentioned above) occurs. (See question 9 of the DOL’s FAQs.)
- A32. No. An employer may not require employees to use other paid leave before they use EPSLA leave. EPSLA leave is available for immediate use. Moreover, EPSLA leave is available to eligible employees in addition to whatever paid sick leave the employer already provides by policy or state and local law. An employer may not use already existing sick leave to comply with the EPSLA. (See question 46 of the DOL’s FAQs.)
- A33. Consistent with prior state and local paid sick leave requirements, the act prohibits employers from requiring that employees search for or find a replacement employee to cover hours during which they use EPSLA leave.
A34. Employers generally must compensate employees for any paid sick time they take at the higher of their regular rate, the federal minimum wage, or the local minimum wage. However, there are two limitations. First, payments for EPSLA leave are capped at $511 per day ($5,110 in the aggregate). Next, employees absent for reasons designated as “Care for Others,” “School/Childcare Closure,” and “Similar Conditions” described above must be compensated at two-thirds of their regular rate (subject to applicable minimum wage laws), capped at $200 per day ($2,000 in the aggregate). Unlike the amendments to the FMLA in the Families First Coronavirus Response Act, the act does not contain any provision for an initial period of unpaid leave.
Full-time employees are eligible for 80 hours of pay. They are the employees who are scheduled to work 40 hours or more per week. (See question 49 of the DOL’s FAQs.) For anyone else, an employer must attempt to populate their leave banks with paid leave in the number of hours equivalent to two weeks. To do this, employers should look back 6 months and determine the average number of hours the employee worked and was on leave. If the employee has not worked a sufficient time, the employer should look at what the expected number of hours were when the employee was hired. (See questions 8, 48, and 49 of the DOL’s FAQs.)
Of note, if the employee’s hours are reduced because of a lack of availability of work (for reasons other than the leave itself), then the new schedule will determine how many hours of paid leave an employee can take. In other words, an employee may not use paid sick leave except to cover hours scheduled to work. (See question 28 of the DOL’s FAQs.) For purposes of EPSLA leave, which 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. Conversely, if an employee misses overtime work that he or she would have otherwise, their 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 FAQs.)
- A35. Part-time employees’ schedules can vary from week to week, making calculation of their EPSLA leave more complicated. The act states that where an employer is unable to determine an employee’s hours with certainty, the employer should use the following calculation: (1) the average number of hours the employee was scheduled per day in the prior six-month period calculated on the date leave is taken, inclusive of leave taken, or (2) if the employee did not work during this six-month period, a reasonable expectation of the employee at the time of hiring of the average daily hours the employee would be scheduled to work.
- A36. The act is unclear as to specific employee notice requirements prior to use of paid sick time. At most, the act states that “[a]fter the first workday (or portion thereof)” that EPSLA leave is used, employers may require employees to follow “reasonable notice procedures.” However, the act contains no explicit provision for required notice prior to “the first workday.” Any employer policy or practice need require only advance notice to the extent it is reasonable under the circumstances.
- A37. EPSLA leave under the act is in addition to any paid sick leave already offered by an employer (including subject to state or local requirements). Even if an employer has a generous paid sick leave policy offering more than the 80 hours required by the act, the act requires additional EPSLA leave for COVID-19 purposes.
- A38. Unlike the FMLA amendments in the FFCRA, there is no specific job restoration requirement in the act. However, note that it will be a prohibited act to discharge or discipline an employee who (a) takes leave under the act, and (b) has filed any complaint or instituted any proceeding under or related to the act or who has testified in any such proceeding.
- A39. Fortunately, payments for EPSLA leave under the act are subject to tax credits. Each quarter, employers are entitled to a refundable tax credit equal to 100 percent of the qualified EPSLA leave wages paid to eligible employees. Currently, it does not appear employers will be entitled to any tax credits for any EPSLA leave payments prior to the effective date of the act.
- A40. 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.
- A41. 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.
- A42. The act 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 concerns, employers may provide notice through email or direct mail to employees, or by posting on an employee-facing intranet or external website. This model notice posting is now available. At this time, this model notice is available only in English—employers are not required to provide this notice in any other language—but the DOL is working to translate this notice into other languages.
A43. Employers that do not provide EPSLA leave under the act 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 act 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.
- A44. The act will go into effect on April 1, 2020, and expire on December 31, 2020. The same is true for E-FMLA leave.
- A45. The FMLA benefit protections are in place and employers should follow them for EFMLEA leave. (See question 30 of the DOL’s FAQs.) The DOL indicates that employee benefits should be maintained while on EPSLA leave as well. (See question 30 of the DOL’s FAQs.) 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), 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 FAQs (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 ESPL involving leave to care for others, and for EFMLEA leave, employers should follow the plan’s eligibility rules.
- A45. The DOL advises employers to collect documents specifically related to the reason for the absence. (See questions 15 and 16 of the DOL’s FAQs.) Some documentation will be necessary to claim the tax credits.
- A47. No. (See question 13 of the DOL’s FAQs.) Employers will receive no credit for leave given prior to April 1, 2020.
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.