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Five things you should know about the DOL’s new Coronavirus paid leave rules

Cliff Godiner April 6, 2020

The U.S. Department of Labor has issued its interim rule implementing the paid leave rules mandated by the Families First Coronavirus Response Act (FFCRA).

Effective April 1, 2020, the FFCRA creates new paid leave obligations for employers with fewer than 500 employees: emergency paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and emergency FMLA leave under the Emergency Family and Medical Leave Act (EFMLEA).

The regulations make some substantial clarifications relating to these new forms of leave, the more significant of which are summarized below.

1. Reasons for leave

The DOL regulations further clarify some of the qualifying reasons for taking emergency paid sick leave under the EPSLA:

The employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19.

The regulations define “quarantine or isolation order” as including “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order.” However, to take leave under this reason, the order must make the employee “unable to work even though his or her Employer has work that the Employee could perform but for the order.” If “as a result of the order or other circumstances” the employer does not have work for the employee – as in the case of the closure of a non-essential business under a stay-at-home order or a lack of business due to a stay-at-home order – the employee may not take emergency paid sick leave. For example, if an employee lives in New York, works in Connecticut, and cannot telework, the employee would be eligible for the leave if Connecticut requires someone to be quarantined for 14 days if they enter the State from New York. In that case, the employee would be unable to work – they would be quarantined every time they entered Connecticut – even though the employer had work they could otherwise perform. In that case, the employee is entitled to take emergency paid sick leave under this qualifying reason.

The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

This qualifying reason has been clarified to include a health care provider’s concerns that an employee “is particularly vulnerable to COVID-19,” which may apply in cases where the employee has an underlying health condition that places them at a higher risk. However, in all cases, the employee is only eligible for emergency paid sick leave if their health care provider’s advice to self-quarantine makes the employee unable to work or to telework (assuming the employee can perform his or her job remotely).

The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

Emergency paid sick leave taken for this qualifying reason “is limited to time the Employee is unable to work because the Employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.” We suspect that many persons who fall into this category will also fall into the category of persons who have been told by a health care provider to self-quarantine.

The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine.

An “individual” for this qualifying reason is defined as “an Employee’s 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 that the Employee would care for the person if he or she were quarantined or self-quarantined.”

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 qualifying reason applies both to emergency paid sick leave and to emergency FMLA leave. An employee is only eligible for leave under this reason if “no other suitable person is available to care for the Son or Daughter during the period of such leave” and if caring for the child makes the employee unable to work either at the employer’s normal workplace or by telework. An employee may also take emergency paid sick leave and emergency FMLA leave to care for an adult child who has a mental or physical disability and is unable to care for himself or herself if the adult child’s place of care or care provider is closed or unavailable.

2. Calculating emergency FMLA leave

The rule clarifies several calculations related to emergency FMLA leave. For emergency FMLA leave, the first two weeks are unpaid. The DOL made this modification to ensure that emergency FMLA leave and emergency paid sick leave work together and provide a continuous income stream for an eligible employee during the 12-week emergency FMLA period. While this change will not have an effect for employees who work standard, 40-hour weeks, it may be significant for employees who work unconventional hours. Because emergency paid sick leave for employees with varying schedules is calculated as the average number of hours over a two-week period, it would be possible – under the law as enacted – for an employee to run out of two weeks of emergency paid sick leave before she had taken ten days of unpaid emergency FMLA leave, leaving her with unpaid leave days.

3. Documentation and recordkeeping

When requesting emergency paid sick leave or emergency FMLA leave for any qualifying reason, the employee must provide: 1) the employee’s name, 2) the dates for which leave is requested, 3) the qualifying reason for leave and 4) an oral or written statement that the employee is unable to work (or telework if authorized by the employer) because of the qualified reason for leave.

Each qualifying reason requires additional documentation. For any leave taken due to a government quarantine or isolation order – whether for the employee or for an individual in the employee’s care – the employee must provide the employer with the name of the government entity issuing the order. For any leave taken due to the advice of a health care provider that the employee or an individual under the employee’s care self-quarantine, the employee must provide the name of the health care provider. For emergency paid sick leave and emergency FMLA leave taken to care for a child whose school or child care provider is closed or unavailable, the employee must provide: 1) the name of the child, 2) the name of the school, place of care, or child care provider and 3) a representation that no other suitable person will be caring for the child during the period the employee intends to take emergency leave.

The regulations allow the employer to request any additional material needed to support a claim for the applicable tax credits and direct employers to the IRS’s FAQs regarding FFCRA tax credits for further guidance. Documentation necessary to support a claim for FFCRA tax credits include: 1) documentation showing how the employer determined the amount of leave paid to an employee, including appropriate records of work, telework and emergency leave; 2) documentation showing how the employer determined the amount of qualified health plan expenses the employer allocated to wages; and 3) copies of the applicable completed IRS forms. In addition, for leave taken to care for a child older than fourteen during daylight hours, the IRS requires a statement that special circumstances exist requiring the employee to provide care.

The employer must retain all documentation (including the employee’s oral statements, which the employer must document and record) for four years, regardless of whether the leave was granted or denied. The employer should be sure to keep all documentation needed to support its eligibility determinations and tax credit claims in the event of any subsequent DOL investigations or IRS audits.

4. Effect on other laws, employer policies and collective bargaining agreements

The rule makes it clear that the new laws do not in any way diminish rights or benefits to which an employee is entitled to under another Federal, State or local law, a collective bargaining agreement or an “employer policy” that existed before April 1, 2020. The DOL’s discussion accompanying the final rule states that an employer may prospectively terminate any voluntary paid leave offering as of April 1, 2020, which the employer may have provided to employees for reasons related to COVID-19 before the effective date of the FFCRA, provided that the employer had not already amended its leave policy to reflect the voluntary offering.

For emergency paid sick leave, the employee is entitled to use leave under the EPSLA before any other leave she is entitled to, and no employer may “require, coerce, or unduly influence” any employee into using other paid or unpaid leave before using emergency paid sick leave. However, an employer may require the employee to use any provided or accrued leave concurrently with emergency FMLA leave so that the employee receives full, rather than two-thirds, pay for the paid portion of leave under the EFMLEA. If the employer does not require this, the employee has the right to elect to do so.

5. Small business exemption

The rule sets out the process for businesses with fewer than 50 employees to claim a small business exemption from the leave requirements related to an employee’s need to take leave for child care. The exemption applies where “the imposition of such requirements would jeopardize the viability of the business.” The small business is entitled to the exemption if an authorized officer of the business determines that:

  • The leave requested to care for a child 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 leave to care for a child would entail a substantial risk to the financial health or operational capabilities of the 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 leave to care for a child under the EPSLA or EFMLEA, and these labor or services are needed for the small business to operate at a minimal capacity.

Rather than apply for this exemption by submitting a request to the DOL, the employer must only 1) document that a determination has been made pursuant to the criteria above and 2) maintain such documentation in its files. Regardless of whether the employer elects to claim the small business exemption, the employer must still post the notice of FFCRA rights required by the Act and the regulations.

We are available to answer more specific questions on exactly how these new laws will affect your company. If you have any questions, please feel free to call or e-mail your regular contact at Thompson Coburn.

Cliff Godiner attorney in Thompson Coburn’s Labor & Employment practice group.

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