On April 1, 2020, the Department of Labor (DOL) issued “temporary regulations to implement the public health emergency leave … created by a time-limited statutory authority established under the Families First Coronavirus Response Act” (FFCRA). The new regulations provide important clarification and guidance regarding the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) adopted pursuant to the FFCRA. Highlights of the clarification and guidance provided by these new temporary regulations are described below.
Definitions
Son or Daughter: The EFMLEA provides that an employee may take leave due to a “qualifying need related to a public health emergency,” which is defined as a need to care for a son or daughter under 18 years of age due to school or daycare closures. Under the authority granted it by the FFCRA to ensure consistency between the EFMLEA and the FMLA, the DOL’s new regulations define “son or daughter” for purposes of the EFMLEA in the same fashion as that phrase is defined in the FMLA, namely, a son or daughter under 18 years of age or one who is over 18 years of age but incapable of self-care because of mental or physical disability. Thus, EFMLEA leave is available to an employee who is required to care for a son or daughter who is either under 18 years of age or over 18 years of age and incapable of self-care due to school or daycare closures for COVID-19 related reasons.
Telework: The term “telework” is broadly defined in the new regulations to effectuate the FFCRA’s underlying purpose of preventing the spread of coronavirus while providing protection and relief to affected workers. Telework is defined as “work the Employer permits or allows an Employee to perform while the Employee is at home or at a location other than the Employer’s normal workplace. An Employee is able to telework if: (1) his or her Employer has work for the Employee; (2) the Employer permits the Employee to work from the Employee’s location; and (3) there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the Employee from performing that work.”
In addition, the new regulations provide that telework may be performed during normal hours or at other times agreed by the Employer and Employee. To provide the greater flexibility intended by permitting telework, the regulations suspend the application of the so-called “continuous workday” doctrine in the federal Fair Labor Standards Act (FLSA) to telework. The continuous workday doctrine requires that once an employee begins the first principal activity of the day for which they are employed, they must continue to be compensated (with the exception of uncompensated meal breaks) until the completion of the last principal activity of the day. For employees who are teleworking, however, the DOL has determined that an employer allowing such flexibility during the COVID-19 pandemic is not required to count as hours worked all time between the first and last principal activity performed by an employee teleworking for COVID-19 related reasons. This permits employers and employees to agree that employees may work at unconventional times, while tending to family and other responsibilities such as teaching children whose schools are closed for COVID-19 related reasons.
Qualifying Reasons for Emergency Paid Sick Leave (EPSL)
Quarantine or Isolation Order: The new regulations provide that this phrase encompasses a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict mobility. However, the regulations reiterate a clarification contained in the DOL’s March 27, 2020 FAQs, that an employee may not take EPSL where the employer does not have work or telework for the employee to perform as a result of one of these governmental orders. Thus, an employee who works for an employer that has closed its business, or who has been furloughed or laid off due to COVID-19 related reasons, including a quarantine or isolation order, is not eligible for EPSL because the employer does not have any work for that employee to perform.
The new regulations further provide that an employee subject to quarantine or isolation order is able to telework if (1) his or her employer has work for the employee to perform; (2) the employer permits the employee to perform that work from the location where the employee has been quarantined or isolated; and (3) there are no extenuating circumstances that prevent the employee from performing that work.
Advice from a health care provider to self-quarantine: The regulations explain that the advice to self-quarantine must be based on the health care provider’s belief that the employee may have COVID-19, or is particularly vulnerable to COVID-19. Moreover, self-quarantining must prevent the employee from working or teleworking.
Symptomatic and seeking medical diagnosis: The regulations confirm that an employee experiencing symptoms associated with COVID-19 may take EPSL but only if the employee also is seeking a medical diagnosis.
Caring for an individual who is subject to quarantine or isolation order or who is self-quarantining based on a health care provider’s advice: This qualifying reason applies only if, but for a need to care for an individual, the employee would be able to perform work or telework for his or her employer. Furthermore, the regulations clarify that the individual for whom the employee is caring must be someone with whom the employee has a personal relationship such as an immediate family member, roommate, or similar person, that creates an expectation that the employee would care for the person if he or she was quarantined or self-quarantined.
Caring for a son or daughter due to school closure: The regulations state that this basis for EPSL generally is unavailable if another suitable individual such as a co-parent, co-guardian, or the usual child care provider is available to provide the care the employee’s child needs.
Full vs. Part-Time Employment
Full-time employees are entitled to 80 hours of EPSL. Part-time employees are entitled to EPSL in an amount equal to the “number of hours that such employee works, on average, over a two-week period.” For a part-time employee whose schedule varies from week to week, the amount of leave available is calculated by taking the average number of hours the employee was scheduled per day over the six-month period ending on the date on which the employee takes the paid sick time and multiplying it by 14. For part-time employees who have worked less than six months, the computation is 14 times “the expected number of hours the employee and employer agreed at the time of hiring the employee would work, on average, each workday.”
Rate of Pay for EPSL
Employees taking EPSL for the first three qualifying reasons are entitled to be paid at the greater of their regular rate or the applicable minimum wage up to a daily cap of $511.00 and an aggregate cap of $5,110.00. An employee’s regular rate is as defined in section 7(e) of the FLSA as “all [non-overtime] remuneration for employment” paid to the employee, except for statutorily enumerated exceptions as stated in the FLSA. Employees taking EPSL for qualifying reasons second three qualifying reasons are entitled to be paid at the greater of two-thirds their regular rate or two-thirds the applicable minimum wage, subject to the same per day and aggregate caps.
EFMLEA Clarifications
The new regulations clarify certain aspects of the EFMLEA.
Interaction with EPSL: The regulations state that a “qualifying need related to a public health emergency,” as the phrase is used in the EFMLEA, is identical to qualifying reason number 5 under the EPSL, i.e., caring for a son or daughter due to school or daycare closure. Accordingly, the regulations provide that paid EPSL leave can be used during the initial 10-day period of EFMLEA leave that otherwise would be unpaid and that the two leaves run concurrently. To avoid confusion, and pursuant to the DOL Secretary’s authority to issue regulations to ensure consistency between the EPSL and EFMLEA, the regulations clarify that the unpaid period for EFMLEA leave lasts for two weeks rather than ten days.
Paid vs. Unpaid: After the initial two-week period of unpaid leave under the EFMLEA, employees are entitled to be paid at two-thirds their regular rate up to a maximum of $200.00 per day and $10,000.00 in the aggregate. An employee may elect, or an employer may require, an employee taking EFMLEA leave to use available accrued leave, but only such leave as would have been available to the employee under the employer’s policies for purposes consistent with the “qualifying need related to a public health emergency,” e.g., personal leave or PTO. The accrued paid leave runs concurrently with EFMLEA leave. If an employee elects, or an employer requires, an employee to use such accrued paid leave, the employer must pay the employee for a full day’s wages until the accrued leave expires but is only entitled to a tax credit of up to the $200.00 daily cap or $10,000.00 aggregate cap.
Intermittent Leave
The new regulations provide some important clarifications regarding use of either EPSL or EFMLEA on an intermittent basis.
Any use of either leaves on an intermittent basis requires the agreement of both employer and employee, including an agreement as to the increments of time in which the leave may be taken.
If an employee is teleworking, the employer and employee may agree that the employee can take EPSL or EFMLEA leave intermittently in any increment of time. In contrast, if the employee is reporting to an employer’s worksite, the only circumstance in which leave may be taken intermittently is when leave is taken to care for a son or daughter due to school or daycare closure. For all other circumstances justifying EPSL leave, once an employee begins taking such leave, they must take it continuously until the qualifying reason has ended. This is to minimize the potential spread of COVID-19.
Exclusion for Health Care Providers and Emergency Responders
Health care providers and emergency responders may be excluded from both the EPSL and EFMLEA. The term “health care provider” is defined to include any person capable of providing health care services necessary to combat the COVID-19 public health emergency. Emergency responders similarly are broadly defined to include employees who: (1) interact with and aid individuals with physical or mental health issues, including those who are or may be suffering from COVID-19; (2) ensure the welfare and safety of local communities, the state, and the nation; (3) have specialized training relevant to emergency response; and (4) provide essential services relevant to the public’s health and wellbeing.
Documentation
The regulations describe the documentation an employee must provide his or her employer in support of taking EPSL or EFMLEA leave. Specifically, employees must provide 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 a COVID-19 qualifying reason. In addition, if an employee is taking leave due to a quarantine or isolation order, the employee must identify the order to which the employee is subject. If the employee is taking leave because he or she is self-quarantining based on the advice of a health care provider, the employee must provide the name of the health care provider. An employee taking leave due the need to care for another individual must provide information regarding either the quarantine or isolation order at issue or the name of the health care provider who has directed the third party to self-quarantine. Finally, an employee taking leave due to the need to care for a son or daughter must state the name of the child being cared for, the name of the school or care facility that closed, and a statement that there is no other suitable caregiver for the child.
Questions
The EPSLA and EFMLEA, and their new regulations, provide emerging and complex issues for employers. Kronick attorneys across all of the firm’s practice groups – Natural Resources, Public Agencies, Labor & Employment, and Business/Healthcare – are providing clients and the community with ongoing updates as conditions warrant. In the meantime, please feel free to contact us for assistance with issues arising from the current health crisis.