Department of Labor Issues Regulations and Updates Guidance for Families First Coronavirus Response Act

On April 1, 2020, the U.S. Department of Labor (“DOL”) issued regulations for the Families First Coronavirus Response Act (“FFCRA”), which went into effect the same day.  The regulations are available here.

The majority of the content in the regulations is not new and simply repeats information that is also available in the DOL’s FAQs guidance (which has been updated several times since it was first posted).  The DOL’s FAQs are here, and our blog post highlighting key takeaways from the FAQs as initially posted is here.

The latest information for employers from the regulations and the updated FAQs includes:

Clarification of small business exemption.

• Employers with fewer than 50 employees may assert they are exempt from providing emergency paid medical leave (“EPML”) or emergency paid sick leave (“EPSL”) to employees who miss work due to a school or childcare closure. (Note that there are numerous qualifying reasons to use EPSL, including when an employee has been advised to self-quarantine or is showing symptoms consistent with COVID-19 and seeking a medical diagnosis.  However, there is no exemption that will allow small employers to avoid providing EPSL altogether.)
• To deny an employee EPML or EPSL as outlined above, an “authorized officer” of the small employer must determine that:
  • providing such leave would cause the employer’s expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity;
  • the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of their specialized skills, knowledge of the business, or responsibilities; or
  • the employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services that the employee(s) requesting leave provide, and these labor or services are needed for the employer to operate at a minimal capacity.
• Small employers are not required to formally “apply” for the exemption; rather, they must “document the facts and circumstances . . . justify[ing] [the] denial” of leave. The small business exemption does not require prior approval from the DOL, and neither the FFCRA nor the regulations create an express right for employees to challenge the employer’s determination that it qualifies.  Thus, it would appear that small employers have a great deal of discretion to determine whether they qualify for the exemption.
• Small employers who assert the exemption must still post the FFCRA notice to employees.

Use of employer-provided paid time off during EPML.  After the first two workweeks of EPML, employers can require that employees take EPML concurrently with any employer-provided paid time off (such as vacation or personal leave) that would otherwise be available for employees to care for their children under the employer’s policies during their absence.  Employees can also elect to use employer-provided paid time off concurrently.  During the first two workweeks of EPML, employees may elect to use their employer-provided paid leave or EPSL, but the employer may not require them to do so.

Relationship to other paid leave.  EPSL is in addition to any other paid sick leave (including state-required sick leave and leave provided pursuant to an employer’s policies).

Total amount of EPML.  Employees who have already used some or all of their FMLA entitlement are not entitled to an additional 12 weeks of EPML; rather, their available EPML is reduced based on any FMLA leave already taken during the 12-month period the employer uses to determine leave eligibility.  EPML (and EPSL) must be used by December 31, 2020.

Wage and hour concerns.  Pursuant to the DOL’s continuous-workday rule, employers are generally required to pay employees for all hours between their performance of the first and last principal activities during the workday.  In an effort to encourage flexible work arrangements under the FFCRA, however, employers are only required to pay teleworking employees for all reported hours worked.  In commentary accompanying the regulations, the DOL provided the following example of what this means:

“[A]n employee may agree with an employer to perform telework for COVID-19 related reasons on the following schedule: 7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays. This allows an employee, for example, to help teach children whose school is closed or assist the employee’s parents who are temporarily living with the family, reserving work times when there are fewer distractions. Of course, the employer must compensate the employee for all hours actually worked—7.5 hours—that day, but not all 14 hours between the employee’s first principal activity at 7 a.m. and last at 9 p.m.”

Intermittent leave.  Employees may only take intermittent EPSL and EPML if their employer permits it.  Employees who are not teleworking, however, may only take intermittent EPSL if they are absent due to a school or childcare closure.

Definition of “health care provider” and “emergency responder.” 

• In contrast to other employment-related laws, the DOL very broadly defines health care employees who can be exempted from EPSL and EPML to include “anyone employed at a doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution.” The definition also includes individuals employed by an entity that contracts with one of the above institutions to provide services or assist with operation of the facility, along with anyone else who is “otherwise involved in the making of COVID-19 related medical equipment tests, drugs, vaccines, diagnostic vehicles, or treatments.”  We anticipate that this provision may be the subject of future litigation and employers should consult with their counsel before asserting this exemption.
• Emergency responders include anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of patients, or others needed to respond to COVID-19, including military personnel, law enforcement officers, 911 operators, correctional facility employees, and firefighters.

Taking EPSL to care for someone else.  Employees may take EPSL to care for an “individual” who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine due to reasons related to COVID-19.  A qualifying individual means (1) an employee’s immediate family member, (2) a person who regularly resides in the employee’s home, or (3) a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined.

Calculating EPSL for part-time employees.  Section 826.21 of the regulations provides additional guidance to calculate the EPSL entitlement for part-time employees who do not have a normal weekly schedule.  The analysis varies slightly depending on whether the part-time employee has been employed for more or less than six months.

Rehired employee eligibility for EPML.  In a provision that was also addressed in the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”), the regulations clarify that employees who are laid off or terminated after March 1, 2020, had worked for the employer at least 30 of the prior 60 calendar days preceding the layoff, and are subsequently rehired are immediately eligible for EPML.  They do not have to work for another 30 days to re-qualify.

Reinstatement after EPML for employers with fewer than 25 employees.  Small employers may deny reinstatement to employees who have taken EPML if (1) the employee’s position no longer exists due to economic conditions or other changes in operation conditions caused by a public health emergency, (2) the employer makes reasonable efforts to restore the employee to an equivalent position, and (3) when efforts to restore the eligible employee to an equivalent position fail, the employer makes reasonable efforts to contact the employee over the next year if any equivalent positions become available.

Documentation.

• Employers are not required to respond to employees who request to use EPML with documentation that is typically required under FMLA—namely, notices of eligibility, rights and responsibilities, or written designations that leave use counts against an employee’s FMLA entitlement.
• Employers must retain all documentation related to leave requests under the FFCRA for four years, regardless of whether the leave is granted or denied.