On April 1, 2020, the U.S. Department of Labor (DOL) Wage and Hour Division (WHD) published temporary regulations interpreting paid leave under the Families First Coronavirus Response Act (FFCRA). The new regulations create Part 826 of Title 29 of the Code of Federal Regulations and will be referred to 29 C.F.R. §§ 826.10-826.160.
Employers should consider the DOL’s temporary regulations in addition to previous guidance and the DOL FAQ.
Generally speaking, the majority of terms found in the Emergency Paid Sick Leave Act (E-PSLA) and Emergency Family Medical Leave Expansion Act (E-FMLEA), both components of the FFCRA, are based on defined terms in other statutes and regulations. In order to avoid confusion the regulations modify some definitions and add new defined terms. Below are some examples:
Telework may be performed during normal hours or at other times agreed by the employer and employee. Telework is work for which wages must be paid as required by applicable law and is not compensated as paid leave under the E-PSLA or E-FMLEA. Employees who are teleworking for COVID-19-related reasons must be compensated for all hours actually worked and which the employer knew or should have known were worked by the employee.
Notably, the definition of “Subject to a Quarantine or Isolation Order” appears broader than other existing definitions. For example, guidance published by New York State in relation to its new quarantine leave law state definitions for mandatory quarantine and isolation orders that are much narrower.
E-PLSA provides eligible employees with paid sick leave if the employee is unable to work because of any one of six qualifying reasons related to COVID-19.
For E-PSLA Reasons 1-3 below, employees are eligible for the higher of:
Employees eligible based on Reasons 1-3 below will be entitled to up to a maximum of $511 per day and $5,110 in the aggregate.
Reason 1: Employee is subject to a federal, state, or local COVID-19 quarantine or isolation order. The regulations clarify that an employee subject to one of these orders may not take paid sick leave:
Reason 2: Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. As it relates to this provision, a healthcare provider has the same meaning as it does in the FMLA. The regulations explain that the advice to self-quarantine must be based on the health care provider’s belief that:
An employee that is able to telework as defined in the regulations is not entitled to the leave.
Reason 3: Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis. The regulations explain that symptoms that could trigger this are: fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention (CDC). Leave 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. An employee that is able to telework as defined in the regulations during this time is not entitled to the leave.
For E-PSLA Reasons 4-6 below, employees are eligible for the higher of:
Employees eligible based on Reasons 4-6 below will be entitled to up to a maximum of $200 per day and $2,000 in the aggregate.
Reason 4: Employee is caring for an individual who is:
This leave is not available to an employee if the employer does not have work for the employee. Furthermore, the employee must have a genuine need to care for the individual. The leave may only be taken for certain family members and/or individuals the employee cohabitates with (e.g. a roommate), but cannot otherwise be taken to care for someone the employee has no personal relationship with.
Reason 5: Employee is caring for their child whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19-related reasons. The regulations clarify that this leave is not available to an employee if the employer does not have work for the employee or if the employee may telework. Furthermore, the employee may only take the leave when the employee needs to, and actually is, caring for their child. Generally, an employee does not need to take such leave 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.
Reason 6: Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
The regulations clarify that the only triggering event under E-FMLEA is meant to mirror Reason 5 above under E-PSLA, which is caring for child whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19 related reasons. For each day of E-FMLEA leave after the initial two-week unpaid period, the employer must pay an employee taking such leave two-thirds of the employee’s regular rate times the number of hours the employee would normally be scheduled to work that day, up to a maximum of $200 per day or $10,000 in total for the additional ten workweeks.
E-PLSA states that a full-time employee is entitled to 80 hours of paid sick leave. The regulations define a full-time employee as an employee who is normally scheduled to work at least 40 hours each workweek. Even if an employee does not work 40 hours every week due to a varying schedule, the employee will still be deemed a “full-time employee” if the employee’s average hours per workweek over the six months prior to the date on which leave is requested is 40 or more hours. If the employee has been employed for less than six months, the average hours per workweek is computed over the entire period of employment.
The regulations define a part-time employee as an employee who is normally scheduled to work fewer than 40 hours each workweek or—if the employee lacks a normal weekly schedule—who is scheduled to work, on average, fewer than 40 hours each workweek. A part-time employee who works a normal schedule is entitled to paid sick leave equal to the number of hours they are normally scheduled to work over a two-workweek period.
E-PSLA states that if the part-time employee’s “schedule varies from week to week … the average number of hours that the employee was scheduled per day over the [six]-month period ending on the date on which the employee takes the paid sick time” shall be used in place of the “number of hours that such employee works, on average, over a [two]-week period” to determine the number of paid sick leave hours.
The DOL states that interpreting the part-time employee varying schedule section of E-PSLA as written would “create a contradiction within the statute and lead to an absurd outcome.” Instead, the DOL believes Congress intended for the E-PSLA to provide part-time employees whose weekly schedule varies with paid sick leave equal to 14 times the “number of hours that the employee was scheduled per [calendar] day,” averaged over the above-mentioned six-month period. An employer may also use twice the number of hours that an employee was scheduled to work per workweek, averaged over the six-month period.
For part-time employees that work a variable schedule but have not worked for the employer for at least six months, the E-PLSA provides that the employee is entitled to “the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.” The DOL opines that Congress made a mistake, and the regulations state that employees that fall into this category are entitled to 14 times the expected number of hours the employee and employer agreed at the time of hiring that the employee would work, on average, each calendar day. The “reasonable expectation” is best evidenced by an agreement between the employee and employer upon hire. In the absence of an agreement, the leave entitlement is to up to the number of hours of paid sick leave equal to 14 times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type. An employer may also use twice the number of hours that an employee was scheduled to work per workweek, on average, over the six-month period.
The payment requirement under the E-FMLEA is triggered after two weeks that an employee uses leave covered by E-FMLEA.
For employees whose schedule varies, the DOL again disagrees with the language in the statute. E-FMLEA states that the forthcoming formulas should be used when an employee schedule varies “week to week.” The DOL disagrees and states that an employee has a variable schedule if the hours the employee works changes “day to day.” In those circumstances the employer should compute pay per day of E-FMLEA leave based on “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 such leave, including hours for which the employee took leave of any type.”
If the employee has not worked for the employer for six months, the regulations follow the same logic as with E-PLSA, and the employee is entitled to “the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”
The regulations provide further guidance for how to calculate an employee’s regular rate of pay.
An employee’s regular rate is computed for each workweek as defined under section 7(e) of the Fair labor Standards Act (FLSA), as “all [nonovertime] remuneration for employment” paid to the employee except for eight statutory exclusions, divided by the number of hours worked in that workweek. See 29 U.S.C. 207(e).
However, neither the E-PSLA nor the E-FMLEA explain which workweek should be used to compute the regular rate that is the basis for determining the amount of pay for leave taken. The regulations state that the employee’s regular rate of pay to use under E-PSLA and E-FMLEA is the employee’s average regular rate over the same six months period ending on the date on which the employee first takes E-PSLA or E-FMLEA leave. For employees that have not yet worked six months, the average regular rate should be computed over the entire term of employment.
As previously reported, all employees employed by a covered employer are eligible to take E-PSLA leave regardless of their duration of employment, and all employees who have been employed by a covered employer for at least 30 calendar days are eligible to take expanded E-FMLEA leave.
While covered employers need not provide E-PSLA or E-FMLEA leave to employees that are laid off, the regulations clarify employee eligibility for employees that are subsequently rehired by their employer. Specifically, an employee who is laid off or otherwise terminated by an employer on or after March 1, 2020, is nevertheless also eligible for E-FMLEA and E-PLSA, provided the employer rehires or otherwise reemploys the employee on or before December 31, 2020, and the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated. For example, an employee who was originally hired by an employer on January 15, 2020, but laid off on March 14, 2020, would be eligible for leave under the E-FMLEA and the E-PSLA, if the same employer rehired the employee on October 1, 2020.
The E-FMLEA and the E-PSLA both provide that an employer may exclude employees who are health care providers or emergency responders from leave requirements under the FFCRA. An employer’s exercise of this option does not authorize an employer to prevent an employee who is a health care provider or emergency responder from taking earned or accrued leave in accordance with established employer policies.
For the purposes of employees who may be exempted under E-FMLEA and the E-PSLA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary 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 includes any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility. This also includes anyone employed by any 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
It is important to note that the “health care provider” contained here applies only for the purpose of determining whether an employer may elect to exclude an employee from taking leave under the E-PSLA and/or the E-FMLEA, and does not otherwise apply for purposes of E-FMLEA or E-PSLA.
An emergency responder is anyone necessary for the provision of transport, care, health care, 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, firefighters, 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. This also includes any individual whom the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that State’s or territory’s or the District of Columbia’s response to COVID-19.
In the case of a public agency, or any other entity that is not a private entity or individual, E-PSLA and E-FMLEA-covered employers includes those that employ one or more employees.
Private sector employers with one to 499 employees are covered. Employers must count all full-time and part-time employees employed within the United States at the time the employee would take leave. For purposes of this count, every part-time employee is counted as if they were a full-time employee.
The number of employees includes: all employees currently employed, regardless of how long those employees have worked for the employer; any employees on leave of any kind; and employees of temporary placement agencies who are jointly employed under the FLSA.
The number of employees does not include workers who are independent contractors or who have been laid off or furloughed and have not subsequently been reemployed.
An employer, including a religious or nonprofit organization, with fewer than 50 employees is considered a “small business” and is exempt from providing leave under E-PSLA and E-FMLEA when the imposition of such requirements would jeopardize the viability of the business as a going concern.
A small business under this section is entitled to this exemption if an authorized officer of the business has determined that:
To elect this small business exemption, the employer must document that a determination has been made pursuant to the criteria listed above. The employer should not send such documentation to the DOL, but rather retain the records in its files. Regardless of whether a small employer chooses to exempt one or more employees, the employer is still required to comply with the notice requirement.
One basic condition applies to all employees who seek to take their E-PSLA or E-FMLEA leave intermittently: They and their employer must agree. A written agreement is not required under the regulations but employers are well advised to set forth the terms in writing. Only certain leave can be intermittent. Employers willing to agree to intermittent leave will want to thoroughly review the regulations dedicated to the same.
As previously reported, E-FMLEA provides employees with 12 weeks of leave “to care for his or her child whose school or place of care is closed, or whose child care provider is unavailable, for a COVID-19 related reason.”
The DOL states in the regulations that it believes Congress’s intent was for E-PSLA and E-FMLEA to work hand in hand, and attempts to reconcile inconsistencies in their wording. Specifically, the stated intent is for eligible employees to be able to use two weeks of paid E-PLSA, followed by 10 weeks of paid E-FMLEA.
For example, E-FMLEA states that the first 10 days of leave may be unpaid. The regulations clarify that the intent was to cover the initial two-week leave period, and the language of “10 days” could result in inconsistent leave entitlement. Accordingly, the regulations clarify that the initial unpaid leave under E-FMLEA should be two weeks, and not 10 days.
Employees that have already used FMLA in the last year will not be entitled to an additional 12 weeks of E-FMLEA. Each employee scenario will need to be analyzed individually to determine an employee’s E-FMLEA leave entitlement. However, an employee’s previous FMLA use does not have an effect on an employee’s entitlement to E-PSLA.
Every employer covered by FFCRA’s paid leave provisions is required to post and keep posted on its premises, in conspicuous places, a notice explaining the FFCRA’s paid leave provisions and providing information concerning the procedures for filing complaints of violations of the FFCRA with the WHD. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. Prototypes are available here.
Under the FMLA, employers are beholden to certain leave notice requirements. The regulations do not require employers to respond to employees who request or use E-FMLEA leave with notices of eligibility, rights and responsibilities, or written designations that leave use counts against employees’ FMLA leave allowances. However, an employer that has established practices for providing individual employees with specific notices compliant with the FMLA regulatory guidance may prefer to apply their existing practices to E-FMLEA leave users.
For E-PSLA or E-FMLEA leave for the employee’s child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19-related reasons, an employer may require employees to follow reasonable notice procedures as soon as practicable after the first workday or portion of a workday for which an employee receives paid sick leave in order to continue to receive such leave. It is reasonable for an employer to require notice as soon as practicable after the first workday is missed, and to require that employees provide oral notice and sufficient information for an employer to determine whether the requested leave is covered by the FFCRA.
It is reasonable for the employer to require the employee to comply with the employer’s usual notice procedures and requirements, absent unusual circumstances. If an employee fails to give proper notice, the employer should give the employee notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.
An employee must provide their employer documentation in support of paid sick leave or expanded family and medical leave, including a signed statement containing the following information:
An employee must provide additional documentation depending on the COVID-19 qualifying reason for leave, as further described in the regulations.
While an employee is taking E-PSLA or E-FMLEA leave, the employer must maintain the employee’s coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period.
In accordance with its existing collective bargaining obligations, an employer signatory to a multiemployer collective bargaining agreement may satisfy its obligations to provide E-FMLEA and E-PLSA by making contributions to a multiemployer fund, plan, or other program.
In most instances, an employee is entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave in the same manner that an employee would be returned to work after FMLA leave. However, the new statute does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether the leave was taken. The employer must be able to demonstrate that the employee would have been laid off even if they had not taken leave.
The restoration provision does not apply to an employer who has fewer than 25 employees pursuant to certain criteria further described in the regulations.
Employers are required to retain all documentation provided for four years, regardless of whether leave was granted or denied.
An employer is prohibited from discharging, disciplining, or discriminating against any employee because such employee took E-PSLA leave, filed any complaint, or instituted or caused to be instituted any proceeding, including an enforcement proceeding, under or related to the E-PSLA, or has testified or is about to testify in any such proceeding.
Employers who fail to provide E-PSLA leave are considered to have failed to pay the minimum wage as required by the FLSA and is subject to the enforcement provisions set forth in sections 16 and 17 of the FLSA.
Any employer that discharges, disciplines, or discriminates against an employee is considered to have violated section 15(a)(3) of the FLSA and is subject to the enforcement provisions relevant to such violations set forth in sections 16 and 17 of the FLSA.
The prohibitions against interference with the exercise of rights, discrimination, and interference with proceedings or inquiries described in the FMLA apply to employers with respect to E-FMLEA.
Employers who commit a prohibited act shall be subject to the enforcement provisions set forth in section 107 of the FMLA, except that an eligible employee may file a private action to enforce the E-FMLEA only if the employer is otherwise subject to the FMLA in the absence of E-FMLEA.
An employee’s entitlement to, or actual use of, E-PSLA leave is in addition to—and shall not in any way diminish, reduce, or eliminate—any other right or benefit to which the employee is entitled under any of the following:
No diminishment of other rights or benefits
Any employee leave used prior to April 1, 2020, for reasons related to COVID-19 or otherwise, shall not be grounds for an employer to deny or delay him or her E-PSLA or E-FMLEA,
No employee has a right or entitlement to receive any retroactive reimbursement or financial compensation through E-PSLA or E-FMLEA for any unpaid or partially paid leave taken prior to April 1, 2020, even if such leave was taken for COVID-19-reated reasons.
Sequencing of E-PSLA Leave
Employees may first use E-PSLA leave before using any other leave to which he or she is entitled by any:
Employers may not require, coerce, or unduly influence any employee to first use any other paid or unpaid leave to which the employee is entitled before the employee uses E-PSLA.
Sequencing of E-FMLEA Leave
On April 10, 2020, the DOL issued corrections to the preamble and regulatory text. Many of the corrections are non-substantive, but one noteworthy modification to the regulations is the removal of 29 C.F.R. § 826.70(f) in its entirety, which addressed the substitution of paid leave with E-FMLEA leave.
The DOL now appears to take the position that employers may unilaterally require employees to use existing accruals concurrently with E-FMLEA leave. Additional support for this conclusion is found elsewhere in the regulations, including in 29 C.F.R. § 826.23(c) and 29 C.F.R. § 826.160 (c)(1).
The administration of E-FMLEA, E-PSLA, and other applicable state or local laws require careful consideration and should be evaluated on a case by case basis with employment counsel to ensure compliance with the nuances and intersection of each law.
No creation of requirements upon end of employment or expiration of leave
Employees have no right or entitlement to receive financial compensation or other reimbursement for unused E-PSLA or E-FMLEA upon the employee’s termination, resignation, retirement, or any other separation from employment or after the law expires on December 31, 2020.
One time use
Any person is limited to a total of 80 hours E-PSLA leave. An employee who has taken all such leave and then changes employers is not entitled to additional E-PSLA from his or her new employer.
An employee who has taken some, but fewer than 80 hours of E-PSLA, and then changes employers is entitled only to the remaining portion of such leave from their new employer and only if their new employer is covered by the E-PSLA. Such an employee’s E-EPSLA would expire upon reaching 80 hours of E-PSLA total, regardless of the employer providing it, or when the employee reaches the number of hours of paid sick leave to which they are entitled based on a part-time schedule with the new employer.
Goldberg Segalla’s Employment and Labor practice and Coronavirus Rapid Response Team will continue to provide updates and guidance as the situation develops. For more information, contact: