On April 6, 2020, the DOL published the final rule regarding paid leave under the Families First Coronavirus Response Act (FFCRA). These temporary regulations provide guidance and implement the emergency family and medical leave (under Title 1 of the FMLA) and emergency paid sick leave provided by the FFCRA and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) in light of the COVID-19 global pandemic. The final rule is in effect April 2, 2020, through December 31, 2020; however it became operational on April 1, 2020.
In the final rule, the DOL addresses many details around administering emergency paid sick leave (EPSL) and emergency FMLA (EFMLA) due to COVID-19 related reasons. Highlights include provisions:
- Reiterating the employer’s responsibility to maintain an employee’s group health coverage during EFMLA.
- Explaining how an employer determines if its employee count is 500 or more for purposes of being subject to the FFCRA. The regulations emphasize that independent contractors and employees who have been laid off or furloughed and have been reemployed are not included in the count. Note that for purposes of furloughed employees there is no federal definition of “furlough,” and state law may impact employee count.
- Emphasizing that reasons for EPSL must cause the employee to be unable to work in order to apply. Further, the DOL addresses whether a state’s shelter-in-place (or stay-at-home order) would allow an employee to take EPSL. The guidance explains that the first reason that entitles an employee to EPSL is if the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19, and confirms that a shelter in place order constitutes a quarantine or isolation order. However, an employee who has been furloughed or experienced a reduction in hours because the employer has no work for that employee to perform is not eligible for paid sick leave.
- Providing guidance on the small employer exemption. The final rule explains that the exemption applies for small, private employers under 50 employees on a per-employee basis, only for an employee requesting EPSL or EFMLA due to the need to care for a child whose school (or place of care) is closed or whose child care provider is unavailable for reasons related to COVID-19. And, the requested leave must jeopardize the viability of the business. The regulations further explain the certain conditions that would constitute jeopardizing the business, such as:
- The provision of paid sick leave or expanded family and medical leave would result in the small business’ 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 paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities.
- 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 paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
The final rule also address related employer recordkeeping requirements to document the exemption. As explained, the employer must document the facts and circumstances that meet the criteria described in the regulations to justify such denial. The employer should not send such material or documentation to the DOL, but rather should retain such records for its own files. (Under the FFCRA, an employer is required to maintain such records for at least four years.)
- Providing guidance on documentation needed from the employee to qualify for EPSL and EFMLA. This includes the employee’s name; the date(s) for which leave is requested; the COVID-19-qualifying reason for leave; and a statement representing that the employee is unable to work or telework because of the COVID-19-qualifying reason. Further, there is additional documentation required depending on the reason for EPSL or EFMLA as outlined in the regulations. For example, for a leave request based on a quarantine order or self-quarantine advice, the employee statement should include the name of the governmental entity ordering quarantine (or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee). Further, for a leave request based on a school closing (or child care provider unavailability), the employee statement should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave. Notably, the regulations indicate that an employer may not require any such documentation to include documentation beyond what is allowed by the regulations.
The above highlights are not exhaustive; the final rule provides the formal regulatory basis for the FFCRA Q&A publication the DOL has previously issued. In addition, it should also be noted that on April 10, 2020, the DOL published a correction to the final rule. These revisions are primarily technical corrections (e.g., to correct spelling and to ensure a consistent style throughout the new regulations).
Employers subject to the FFCRA (i.e., private employers with fewer than 500 employees and public employers of all sizes) should follow the guidance in the final rule when providing emergency FMLA or emergency paid sick leave to employees.
See our previous Compliance Corner articles on the CARES Act (March 31) and the FFCRA (March 17) for additional information.
Final Rule: Paid Leave Under the Families First Coronavirus Response Act »
Final Rule Correction »