The New FFCRA Regulations: Helpful Clarifications, a Few Surprising Answers

CLIENT ALERT

By Karen A. Whitley

April 6, 2020

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA), establishing two forms of paid leave for employees who need to take time off from work related to COVID-19 between April 1 and December 31, 2020.  Since March 18, the Department of Labor (“DOL”) has issued and continued to update several guidances, including Fact Sheets, Q&A documents, and a poster.  On April 1, 2020, the date that the FFCRA took effect, the DOL published regulations (along with a lengthy preamble) to help employers understand and implement the FFCRA in their workplaces.

The FFCRA offers emergency paid sick leave (“PSL”) and Emergency Family and Medical Leave (“EFML”) to help working families during the COVID-19 pandemic.  Eligible employees can take up to two weeks of PSL for certain COVID-19 reasons.  The amount of pay employees will receive, up to a certain maximum per day, depends on the reason they take the leave (for their personal health situation or to care for others).  Employees can also take up to 12 weeks of EFML, but only if they are unable to work because they need to care for a son or daughter whose school or daycare provider is closed or unavailable. The first ten days (two weeks) of EFML are unpaid, but employees may substitute PSL (at 2/3 pay) or accrued PTO during that time.  For the remaining ten weeks, pay is based on 2/3 of the employee’s regular rate, up to $200 per day.

The new regulations answer several of the pressing questions left open when the FFCRA was passed.  Here are some most frequently asked by our clients.

1. Does a stay-at-home order mean that an employee can take paid leave under the FFCRA?

A non-essential employee who is “subject to a Federal, State, or local quarantine or isolation order related to COVID-19,” or who is taking care of someone subject to a “quarantine or isolation order” may take up to 80 hours of PSL.  In recent weeks, nearly every state has issued some form of “stay-at-home” order directed to workers in non-essential businesses.  The regulations confirm that the phrase “quarantine or isolation order” includes orders advising “some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.”

However, an employee will only be eligible for PSL if the stay-at-home order prevents the employee from working or teleworking.  If the employee can work at home and there are no extenuating circumstances preventing teleworking (like a power outage), the employee cannot take PSL.  Also, if the employee is home because the employer has no work for the employee to do, the employee cannot take PSL.  In that case, the employee is not staying home to comply with the stay-at-home order, but because of lack of work offered by the employer.  The employee could apply for unemployment benefits, but would not be eligible for PSL.

2. The FFCRA covers private employers with fewer than 500 employees, but might allow smaller employers to deny leave if providing that leave would jeopardize their business. How can an employer take that exemption? 

The FFCRA contains an exemption for small private employers (fewer than 50 employees) if offering leave would “jeopardize the viability of the business as a going concern.”  This exemption is only available if the employee would need either PSL or EFML leave to care for a son or daughter whose school or daycare has been closed due to COVID-19.  This exemption is not available if an employee takes PSL for other COVID-19 reasons (their own illness, to care for a child who has COVID-19 symptoms, leave due to an isolation order, etc.)

An employer must count all full-time and part-time employees, as well as employees on leave and all common employees of joint employers or integrated employers to determine whether it is under the 50 person threshold.

An employer does not need to apply for this exemption, or send any materials to the DOL, but if an employer denies leave to an employee on the grounds that the employee’s absence would jeopardize the business, the employer must document the facts and circumstances that meet the following criteria:

• the 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 employee’s absence would pose a substantial risk to the financial health or operational capacity of the employer because of the employee’s specialized skills, knowledge of the business, or responsibilities; or
• the employer would not have other workers who are able, willing, qualified, and available to perform the labor or services that the employee provides, and these labor or services are needed for the employer to operate at a minimal capacity.

A small employer might not be able to exempt itself entirely from offering EFML; instead, a small employer can only use the exemption to deny leave to otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity.  By setting these criteria, the DOL attempted to extend the leave benefits as broadly as practicable, without significantly increasing the likelihood that a small employer would go out of business.

3. The FFCRA covers all employers with fewer than 500 employees, but contains a possible exemption for “health care providers.” What does that include?

Under the FFCRA, employers may exclude certain “health care providers” from taking PSL or EFML.  The DOL adopted a broader definition of this term than is used in other parts of the FMLA in order to ensure that critical health services are available during the pandemic. The definition of health care provider is:

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 also includes employees of an entity that contracts with any of the above institutions and employees of an 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.  Additionally, “the highest official of a State” can add to this list.

4. The FFCRA also allows an employer to deny leave to “emergency responders.” What does that include?

To combat the COVID-19 pandemic, the FFCRA allows employees to take leave to care for their families, but not at “the expense of fully staffing the necessary functions of society, including the functions of emergency responders.”  For that reason, the DOL interprets “emergency responder” broadly, meaning that employers may deny leave to employees who meet the following description:

anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This 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, child welfare workers and service providers, 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.

Again, the “highest official of a State or territory” can expand this list to add other businesses as “emergency responders” who are necessary to respond to COVID-19.

The DOL encourages employers to be “judicious” when asserting the health care provider and emergency responder exemptions, keeping in mind that the goal is to minimize the spread of COVID-19.

5. What type of documentation will an employee have to provide in order to take Paid Sick Leave or EFML?

When an employee takes standard FMLA leave for a serious health condition, employers often ask for a detailed “certification” from a health care provider.  During this pandemic, health care providers are likely unavailable to answer certification requests.  The regulations do not require that level of documentation, but do give employers some ability to make sure that the leave being provided is needed for an eligible purpose.  Employers can also require employees to follow its reasonable notice procedures about their absences after the first day of absence.

To support a request for PSL or EFML, the employee must provide a signed statement containing: a) their name, b) dates of the leave, c) reason for the leave, and d) an oral or written statement that the employee is unable to work or telework because of the qualifying reason for leave.  If the leave is related to a quarantine or isolation order, the employee must state the name of the government entity issuing the order.  If the employee has been advised by a health care provider to self-quarantine, or is caring for someone else, the employee must provide the health care provider’s name.

Employers who are concerned about an abuse of PSL and EFML taken to care for a child whose school or daycare leave is closed will want to pay attention to a discrepancy in the regulations.  That is, section 826.20 states that an employee can take PSL or EFML to care for a child whose school or daycare provider is closed “only if no other suitable person is available to care for the Son or Daughter during the period of such leave.”  However, in section 826.100, the DOL has outlined slightly different information an employer can ask for: a) the name of the son or daughter being cared for; b) the name of the school, daycare, or child care provider that has closed; and c) a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes PSL or EFML.  Employers may want to confirm that, not only will no one else be caring for the child, but that no other suitable person is available to care for the child during the hours that the employee is taking EFML.

The employer is not required to approve the leave if the employee fails to give proper documentation.  Documentation relating to requests for leaves of absence under the FFCRA should be kept for four years.

6. Are employees who are afraid to come to work able to take PSL?

Employees are not eligible to take PSL unless they satisfy one of the qualifying reasons.  Concern for one’s health, without being advised by a health care provider to self-quarantine is not sufficient.  The regulations and preamble confirm that taking PSL is appropriate in the following situations:

• an employee experiencing COVID-19 symptoms may take PSL while making, waiting for, or attending an appointment for a COVID-19 test;
• an employee who tests positive may take PSL, regardless of symptoms experienced, if the health care provider advises the employee to self-quarantine;
• an employee unable to telework may take PSL while awaiting a test result, regardless of the severity of the COVID-19 symptoms that he or she might be experiencing because they have sought a medical diagnosis;
• an employee who exhibits COVID-19 symptoms and seeks medical advice but is told that he or she does not meet the criteria for testing and is advised to self-quarantine, is eligible to take PSL;
• an employee who has a genuine need to take care of someone else with whom the employee has a personal relationship. This is not limited to immediate family members, but can include a roommate, “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 self-quarantined or was quarantined.”

The following situations are examples of an employee not able to take PSL:

• An employee who self-quarantines without seeking a medical diagnosis; and
• An employee who is able to telework while waiting for test results.

7. Can an employee take intermittent leave under the Paid Sick Leave and EFML?

An employee’s ability to take intermittent leave depends on the type of leave and whether the employee can telework or must report to the workplace.  Importantly, intermittent leave is only permitted if the employer agrees.  The employer and employee must also have a clear and mutual understanding about the increments of time in which intermittent leave may be taken.

If an employee is teleworking, the employee and employer may agree that the employee can take PSL or EFML intermittently, in any agreed increment of time, but only if the employee is unable to telework for a COVID-19 reason.

A different set of rules apply to employees who must report to work.  They can only take PSL or EFML intermittently if they are needed to care for, and are actually caring for, a child whose school or daycare is closed.  If an employee who must work on-site needs leave for other COVID-19 reasons (being advised to self-quarantine, caring for someone with symptoms, etc.), intermittent leave is not allowed.  Once the employee begins taking PSL, the employee must take consecutive days of leave until the employee no longer has a qualifying reason to take PSL.

The regulations also describe how to calculate intermittent leave, including special rules for tracking leave for part-time employees.

8. If an employee takes EFML, how does that affect time they may need for other FMLA purposes?

Any EFML taken by an eligible employee will count towards the twelve workweeks of FMLA leave to which some employees are already entitled under the Family and Medical Leave Act of 1993.  If an employee has already taken standard FMLA time in the 12-month FMLA period (or wants to take FMLA in the future), the employee will have less EFML time available.   If an employee has exhausted his or her twelve workweeks of FMLA leave or EFML, he or she may still take any remaining PSL for a COVID-19 qualifying reason.

9. Can an employer require an employee to use PTO while taking PSL or EFML?

An employer cannot require an employee to use accrued sick leave while taking PSL.  During the first two weeks of EFML, the employee may choose to substitute PSL or accrued sick leave for the unpaid time.  But after the first two weeks, while an employee is using EFML to take care of a child, the employer can require the employee to use vacation or personal leave or paid time off concurrently with EFML.

10. What happens if an employer does something wrong?

In a separate Q&A document, the DOL has confirmed that it will not generally take any enforcement actions against employers who make good faith efforts to comply with the FFCRA until April 17, 2020.  The DOL has reserved the right to retroactively enforce violations back to April 1 if employers have not remedied violations.  Additionally, because there are many employers subject to the FFCRA who have not been subject to the Family and Medical Leave Act before now, an employee will not be able to file a lawsuit directly against an employer who was not previously covered by the FMLA.

Even since the publication of the regulations, the DOL has continued to publish updates to its Q&A documents.  Stay tuned for further clarifications as these leave programs are implemented.