KEY CLARIFICATIONS ISSUED APRIL 1, 2020 REGARDING FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)
The Department of Labor has released over 150 pages of guidance and new regulations regarding the FFCRA. Palmieri Tyler has distilled the guidance into the following key points:
SMALL BUSINESS EXEMPTION
1. Will I be able to claim the small business exemption in the FFCRA?
The new regulations explain that the small employer exemption applies only when all three of the following are met: 1) When a private employer has fewer than 50 employees; and 2) When an employee requests paid sick leave and/or expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable; and 3) When such leave would jeopardize the viability of the business as a going concern.
The Department or Labor has set forth the following objective criteria to determine when the “viability of the business as a going concern” is jeopardized:
(1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
(2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
(3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.
The employer may deny paid sick leave or expanded family and medical leave only to those 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, respectively.
2. How do I claim the small business exemption?
If a small employer decides to deny paid sick leave or expanded family and medical leave to an employee or employees whose child’s school or place of care is closed, or whose child care provider is unavailable, the small employer must document the facts and circumstances that meet the criteria set forth above to justify such denial. The employer must document its authorized officer’s determination that the prerequisite criteria for that exemption are satisfied and retain such documentation for four years.
HEALTH CARE PROVIDER EXEMPTION
Will I be able to claim the health care provider exemption?
The term “health care provider” is not limited to diagnosing medical professionals. Rather, such health care providers include any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency. Such individuals include not only medical professionals, but also other workers who are needed to keep hospitals and similar health care facilities well supplied and operational. They further include, for example, workers who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat the COVID-19 public health emergency. The regulations list the following as “health care providers”:
- 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;
- Any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions;
- Any individual employed by an entity that contracts with any of the 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;
- 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; and
- 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.
1. “Son or daughter under 18 years of age”
Due to conflicting provisions in the regular FMLA, the Department of Labor clarified that “son or daughter under 18 years of age” for purposes of both EFMLA and EPSLA additionally applies to a son or daughter over the age of 18 “who is incapable of self-care because of a mental or physical disability.”
2. “Subject to a Federal, State or local quarantine or isolation order”
A quarantine or isolation order broadly includes “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders” that cause the employee to be unable to work even though the employer has work for them. This also includes when such orders advise categories of employees (such as of certain ages or certain medical conditions) to shelter in place or stay at home.
3. “Fewer than 500 employees”
A company should count the number of employees (full time and part time) it employs in the United States (including the District of Columbia or any Territory or possession of the United States) at the time the employee would take leave.
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;
- Employees of temporary placement agencies who are jointly employed
- Day laborers
- Common employees of joint employers or integrated employers
The number of employees does not include workers who are independent contractors or workers who have been laid off or furloughed and have not subsequently been reemployed.
USE OF LEAVE
1. Can employees take EFMLA and/or EPSLA leave in intervals (not all at once)?
One basic condition applies to all employees who seek to take their paid sick leave or expanded family and medical leave intermittently - they and their employer must agree. Absent agreement, no leave under the FFCRA may be taken intermittently. This means that there must be a clear and mutual understanding between the parties that the employee may take intermittent paid sick leave or intermittent expanded family and medical leave, or both. Additionally, where an employer and employee agree that the employee may take paid sick leave or expanded family and medical leave intermittently, they also must agree on the increments of time in which leave may be taken.
Different rules apply to those who are teleworking versus working onsite:
Teleworking: The employee may take paid sick leave or expanded family and medical leave intermittently, in any agreed increment of time, while the employee is teleworking.
Onsite: In contrast, employees who continue to report to an employer’s worksite may only take paid sick leave or expanded family and medical leave intermittently and in any increment - subject to the employer and employee’s agreement - in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite.
Thus, for employees working onsite, an employer and employee may agree that the employee may take paid sick leave or expanded family and medical leave intermittently solely to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19.
However, the regulations absolutely prohibit employees who report to an employer’s worksite from taking paid sick leave intermittently if the leave is taken because the employee: (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis; (4) is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (5) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services. This is because where leave is taken for these reasons, “the employee is, may be, or is reasonably likely to become, sick with COVID-19, or is exposed to someone who is, may be, or is reasonably likely to become, sick with COVID-19.” In these situations, the employee may not take intermittent leave due to the unacceptably high risk that the employee might spread COVID-19 to other employees when reporting to the employer’s worksite. Once such an employee begins taking paid sick leave for one or more of these qualifying reasons, the employee must continue to take paid sick leave each day until the employee either uses the full amount of paid sick leave or no longer has a qualifying reason for taking paid sick leave.
2. Can employees take EPSLA leave when forced to stay at home pursuant to a quarantine or isolation order?
An employee may take paid sick leave if the employee is unable to work because of any one of six qualifying reasons related to COVID-19. The first reason for paid sick leave applies where an employee is unable to work because he or she is subject to a Federal, State, or local COVID-19 quarantine or isolation order. An employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking as described therein.
However, an employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment. This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order.
Additionally, an employee subject to a quarantine or isolation order is able to telework, and therefore may not take paid sick leave, if (a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work. For example, if a law firm permits its lawyers to work from home, a lawyer would not be prevented from working by a stay-at-home order, and thus may not take paid sick leave as a result of being subject to that order. In this circumstance, the lawyer is able to telework even if she is required to use her own computer instead of her employer’s computer. But, she would not be able to telework in the event of a power outage or similar extenuating circumstance and would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.
3. What can I ask of employees who request leave?
Such documentation must include a signed statement containing at least 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 the COVID-19 qualifying reason.
An employee must provide additional documentation depending on the COVID-19 qualifying reason for leave:
- If requesting paid sick leave because the employee is “subject to a Federal, State, or local quarantine or isolation order related to COVID–19”: The employee must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.
- If requesting paid sick leave because “the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19”: The employee must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.
- If requesting paid sick leave “to care for an individual”: The employee must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request.
- If requesting paid sick leave to care for a child: The employee must provide (1) the name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
For leave taken under the FMLA for an employee’s own serious health condition related to COVID-19, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply.
An employer is required to retain all documentation provided for four years, regardless of whether leave was granted or denied. If an Employee provided oral statements to support his or her request for paid sick leave or expanded family and medical leave, the employer is required to document and retain such information for four years. If an employer denies an employee’s request for leave pursuant to the small business exemption, the employer must document its authorized officer’s determination that the prerequisite criteria for that exemption are satisfied and retain such documentation for four years.
The regulations also explain what documents the employer should create and retain to support its claim for tax credits in connection with leave benefits provided under the FFCRA from the Internal Revenue Service (IRS). A more detailed explanation of how employers may claim tax credits can be found at https://www.irs.gov/forms-pubs/about-form-7200, https://www.irs.gov/pub/irs-drop/n-20-21.pdf and https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs
4. Is an employee entitled to an additional 12 weeks of leave under the EFMLA in addition to regular FMLA leave?
The EFMLA amended the FMLA to add a sixth reason to take the twelve-week FMLA entitlement: to care for an employee’s son or daughter whose school or place of care is closed or child care provider is unavailable due to COVID-19 related reasons.
Thus, if an employee has already taken such leave under regular FMLA, the employee may not be able to take the full 12 weeks of expanded family and medical leave under the EFMLA. For example, if the employer uses the calendar year as the 12-month FMLA leave year and an employee took 3 weeks of leave in January 2020 for the employee’s own serious health condition, the employee would only have 9 weeks of expanded family and medical leave available.
5. How does the first two weeks of unpaid EFMLA interact with the EPSLA?
There was confusion as to whether the first 10 days versus two weeks of EFMLA was unpaid. The Department of Labor clarified that the unpaid period is two weeks rather than 10 days. Furthermore, when an employee qualifies for leave under both the EFMLA and EPSLA, an employee may elect to first use the two weeks of paid leave provided by the EPSLA. This use runs concurrent with the first two weeks of unpaid leave under the EFMLA. Any remaining leave taken for this purpose is paid under the EFMLA.
An employee’s prior use of paid sick leave under the EPSLA does not prevent the employee from taking leave under the EFMLA. For example, if the employee takes two weeks of paid sick leave for a qualifying reason under the EPSLA sections 5102(a)(1)–(4) and (6), the employee has exhausted the paid sick leave available to the employee under the EPSLA and may not take additional paid sick leave for any qualifying reason. If the employee then needs to take leave under the EFMLA, the employee may do so.
|ERICA M. SOROSKY
|ERIN K. OYAMA