DOL Final Rule: Paid Leave Under the Families First Coronavirus Response Act

The Rule clarifies the two paid leave provisions under the FFCRA for covered employers, outlined here, and its guidance issued subsequently here and here in our blog.

The Rule spans 125 pages and we have covered most of its provisions in outline format within this blog so that it may be used as a one-stop resource for employers. Therefore, it is longer than our usual blog.

Guidelines applicable to both Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA)

• The majority of terms used by DOL are those from other statutes and regulations and DOL states in the regulations that employers may rely on those definitions when they are not provided within the FFCRA.
• DOL clarifies that “telework” does not imply that employers should require less amount of work for the position.
  • Employees who telework must always record and be compensated for all hours worked.
  • Employers are not required to compensate employees for unrecorded hours while working for COVID-19 reasons unless the employer knew or should have known about the telework.
• Employers and employees should work together to implement highly flexible telework arrangements to perform work at unconventional times.
• DOL suspends its continuous workday guidance (stating all of the time between the performance of first and last principal activities be compensable) for COVID-19 telework because applying it to the situations contemplated under the FFCRA would disincentive flexible workplace arrangements.
• Clarifies “Covered Employers” (who employ less than 500 employees)
  • Reiterates that a covered employer is one who has less than 500 employees at the time an employee would take leave on the day the leave is requested.
  • Employers should count full and part-time employees, employees on leave, temporary employees jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency.
    • Joint or integrated employers must combine employees
    • FLSA joint employer test applies
  • Employers do not count independent contractors, employees laid off or furloughed who have not been reemployed, or employees employed outside of the U.S.
  • Applicable to non-profit and for-profit entities.
• DOL clarifies public employers under the FFCRA are limited to the federal government or agency, state government and political subdivisions, or any interstate governmental agencies.
• Intermittent leave
  • DOL notes that both the employer and the employee must agree to intermittent leave. Absent no agreement, the FFCRA may not be taken intermittently. The agreement does not need to be reduced to writing as long as there is a clear and mutual understanding between the employer and employee.
  • However, we recommend the agreement’s terms be reduced to writing. An email with the employee acknowledging receipt will suffice if you are unable to obtain a signature.
  • The agreement should include a reference to increments of time leave may be taken.
  • Employees who telework are permitted to use intermittent leave which may be taken liberally (subject to agreement with employer).
  • Employees who report to the job site may not use intermittent leave unless reporting to the employer’s worksite would pose minimal risk of spreading COVID-19. Therefore, this is only applicable if the employee is caring for their child if school or day-care provider is closed.
• Small employer exemption
  • Limited to small private employers with less than 50 employees.
  • Employer should document the facts and circumstances to justify the denial and retain with its records.
  • FFCRA paid sick leave may be denied if the leave would jeopardize the viability of the business as a going concern.
    • DOL clarifies that any of the applicable three reasons for denying leave must only be applied to a specific employee otherwise eligible if the leave would cause the employer’s small business expenses and financial obligations to exceed available business revenue, pose a substantial risk or prevent the small employer from operating at a minimum capacity.
    • The employer may deny leave if granting it would:
      • Cause employer’s financial obligations and expenses to exceed available business revenue or cease operating at a minimal capacity;
      • Absence of the employee requesting leave would pose a substantial risk to the financial health or operational capacity of the small employer because of the employee’s specialized skills, knowledge of business or responsibilities;
      • Or the small employer cannot find enough workers who are able, willing and qualified, and who will be available at the time and place of the need, and those services are needed for the employer to operate at a minimal capacity.
• Health care – Employees are entitled to health care coverage continuation during leave and the employer must provide employees on leave with notice of any changes in plans. Employees remain responsible for their portion of any premium while on leave through payroll deduction. *Allows for recovery of premiums if leave unpaid.
• Employees have a right to return to work after taking both leaves although employment is not protected in the event of layoffs or shutdowns that would have affected the employee whether or not leave was taken.
• Record-Keeping Requirements – Retain all documentation whether leave granted or denied for four years.

Guidelines applicable to Emergency Paid Sick Leave Act (EPSLA)

•  Documentation required
  • Employee must provide a signed statement containing employee’s name, the date leave requested, the COVID-19 qualifying reason for leave and a statement that the employee is unable to telework or work because of the COVID-19 reason.
  • Employee must also provide additional documentation based on the reason for leave:
    • Name of government entity or health care provider that issued the quarantine order the employee is subject to. Note: DOL does not require a note from the provider.
    • For leave to care for a child due to closure of school or daycare, documentation must include the name of the child being cared for, name of the school or child care provider and statement that it is closed due to COVID-19, and a statement that no other suitable person is available to care for the child during the period of requested leave.
    • Care for individual
      • Name of government entity or isolation order to which the employee is subject, or
      • Name of health care provider advising of quarantine due to COVID-19 reasons.
• Clarification applicable to the six qualifying reasons for EPSLA
  1. COVID-19 quarantine or isolation order
     • Includes orders for shelter in place, stay at home, quarantine or otherwise mobility restricted.
     • Employer must determine if the employee would be able to telework but for being required to comply with the order.
     • Employees are not eligible for paid sick leave if:
       • Employer has telework for the employee to perform, permits the employee to perform the work from the location where the employee is being quarantined or isolated, and there are no extenuating circumstances that prevent the employee from performing the work.
       • Employer has no work that the employee could perform, Ex. – business closes so employee not able to work even if not subjected to a quarantine order.
  2. The inability to work because the employee was advised by a health care provider to self-quarantine must also prevent the employee from teleworking in order to qualify for the paid leave. An employee may not collect sick leave if:
     • Employer has work for the employee to perform.
     • Employer permits the employee to perform that work from where the employee is quarantined.
     • No extenuating circumstances keep the employee from performing the work.
  3. COVID-19 diagnosis or experiencing symptoms
     • Identifies applicable symptoms: fever; dry cough; shortness of breath; or other symptoms identified by CDC
     • Clarifies that paid sick leave is limited to time employee cannot work due to illness or taking time to obtain a medical diagnosis
       **Employee may not take paid sick leave without seeking a medical diagnosis.
  4. Employee must care for an individual under federal, state or local quarantine order or has been advised to self-isolate by health care provider due to diagnosis or belief that the individual has COVID-19 or is vulnerable to COVID-19
     • Paid sick leave is available only if the employee is unable to perform work available for the employee to perform but for taking care of the individual
     • Employee must have a “genuine need to care for the individual” and may not be taken for someone with whom the employee has no personal relationship
       • Immediate family member
       • Roommate
       • Similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person.
  5. Employee that is unable to work due to care for a child if their school is closed or a child care provider is unavailable.
     • Only applies if the employer has work for the employee but the employee is unable to perform the work but for the need to care for child.
     • Employee may take paid sick leave to care for their child only when the employee needs to do so.
  6. Notes again that the sixth reason, namely that an employee is unable to work due to some other substantially similar condition, will be specified by HHS in consultation with DOL and Treasury.
• Calculating hours and regular rate
  1. Regular Rate must be paid for each hour of FFCRA leave taken
     • If lower than minimum wage, must be highest minimum wage from jurisdiction
     • For 2/3 pay, 2/3 of highest allowable minimum wage
  2. Capped
     • $511 per day / $5110 per covered employee where full pay required
     • $200 per day and $2000 per employee for 2/3 rate
  3. Hours
     • Fulltime employees worked or scheduled at 40 hours a week for a total of 80 hours
     • Part-time employees are those scheduled for less than 40 hours a week. Employers must use the hours scheduled.
     • Part-time employees who normally fluctuate at hours less than 40 hours a week:
       • Use an average only if hours are not regularly scheduled and hours fluctuate
         • Paid sick leave for varying hours should be equal to 14 times the number of hours the employee actually worked or was scheduled per day averaged over the six month period.

Guidelines applicable to Emergency Family and Medical Leave Expansion Act (EFMLEA)

• DOL confirms that the FFCRA only adds another qualifying reason for FMLA leave and therefore does not provide for greater length of leave than the 12 weeks or hourly equivalent in the event of intermittent leave permitted under the FMLA without regard to which qualifying reason the leave is used by the employee.
• DOL notes that eligible employees for EFMLE may not otherwise be eligible for other forms of FMLA leave if they have worked more than 30 days but less than the FMLA requirements for other qualifying reasons for leave.
• Although covered employers must post the FFCRA paid leave notice, they are not required to respond to EFMLE leave requests with the requisite notices of eligibility, rights and responsibilities, or written designations applicable to other forms of FMLA leave.
• Documentation required:
  • For leave to care for their child due to closure of school or daycare, must include the name of child being cared for, name of school or child care provider and that it is closed due to COVID-19, and a statement that no other suitable person is available to care for the child during the period of requested leave.
  • Leave taken for employee’s own serious health condition related to COVID-19 or that of employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, normal FMLA requirements apply.
• Rate of pay
  • Pay is for 2/3 regular rate of pay;
  • Paid benefit capped at $200 a day or $10,000 in total for 10 workweeks;
  • Varying schedule week to week requires the employer to compute per day the average number of hours the employee was scheduled per day over a six month period ending on the date the employee takes FFCRA EFMLEA leave, including the hours employee took for any type of leave;
  • If the employee has not been employed for six months, then the anticipated hours upon hiring must be used.
• DOL clarifies that an employer may require an employee to use accrued paid leave under its policies such as vacation or sick leave concurrently with the expanded leave under the EFMLEA which would allow employees to receive their full pay during the leave if they have accrued paid time as well as help employers minimize absences.
• The only qualifying reason for leave is due to closures caused by declared Public Health Emergency (PHE) related to COVID-19
  • This reason is the same reason as the 5^th qualifying reason for EPSL
  • Applies only to son or daughter under 18 years unless child incapable of self-care because of mental or physical disability.
• DOL states the FMLA definitions apply if no EFMLEA applicable definition promulgated in the FFCRA.
• Job restoration
  • Does not apply to employers with fewer than 25 employees if:
    • The employee took leave to care for a child whose school or place of care was closed,
    • The employee’s position no longer exists due to operating conditions that affect employment and are caused by a PHE related to COVID-19 during the period of leave, and
    • The employer made reasonable efforts to restore the employee to the same or equivalent position.
    • If the employer’s reasonable efforts to restore the employee fail, the employer must make reasonable efforts for a period of time to contact the employee if the available position becomes available.
  • DOL states nothing in the FFCRA “should be construed as impacting the employee’s exempt status under the FLSA” and provides examples.
    • Employee’s use of intermittent FMLA combined with other paid sick leave or EPSL does not undermine salary basis
    • Does not address non-FFCRA impact to salary basis requirements of 29 C.F.R. Part 541.

Exceptions for Employers of Health Care Providers or Emergency Responders

• Health Care Provider
  • DOL acknowledges the definition of health care provider for FFCRA is broader than the FMLA definition and includes workers who are needed to keep hospitals and similar health care facilities supplied and operational, as well as workers involved in vaccines, equipment and other items necessary to combat COVID-19. The DOL does not use the FMLA definition because the definition is limited to diagnosing medical professionals and is not as comprehensive as the FFCRA requires.
  • Employers’ exercise of this option does not impact its employees earned or accrued sick, personal, vacation or other provided leave under the employer’s established policies or an employee taking that leave in accordance with those policies
  • Employers who do not exercise this option should comply with the FFCRA paid leave requirements and are eligible for the tax credits as well.
• Emergency Responder
  • Definition of applicable workers includes those who interact with and aid individuals with physical or mental health issues, those who ensure the welfare and safety of communities and the nation, those who have specialized training relevant to emergency response, and those supplying essential service to the American people’s health and well-being.
  • The naming of specific positions within the DOL definition is deferred to the highest official of a state or territory.

Please contact Chris with questions or for additional information.

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