The U.S. Department of Labor (“DOL”) has released its 124-page temporary regulations of the Families First Coronavirus Response Act (“FFCRA”).  Below we summarize the key takeaways from those regulations. 

Quick Reminder: the FFCRA provides for Emergency Paid Sick Leave and Emergency FMLA Leave benefits. 

The FFCRA created two new emergency paid leave requirements in response to the COVID-19 global pandemic: Emergency Paid Sick Leave and Emergency FMLA Leave.  Under the former, an employee may take up to 80 hours (two weeks) of Emergency Paid Sick Leave for COVID-19 qualifying reasons, and under the latter, an employee may take up to 12 weeks of Emergency FMLA Leave for child-care COVID 19-related reasons.  We summarized that law, which went into effect on April 1, 2020, here. We also summarized the initial guidance provided by the DOL in a post here.  Our summary of the regulations below captures those issues not previously addressed by the law itself or in the DOL’s guidance. 

Key Takeaways from the DOL’s Regulations

• The FFCRA applies to employers with less than 500 employees.  Whether an employer meets the threshold number of employees is calculated at the time the employee would take leave.  Thus, depending on the ebb and flow of the workforce population, an employer could be eligible with respect to one employee’s request for leave but then exceed the 500-employee cap for another employee’s request.  Further, the regulations confirmed that employees outside of the United States, independent contractors, and employees who have been subject to layoff or furloughed do not count.
• Small businesses may exempt themselves from both FFCRA leave obligations when:
  1. Such 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;
  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 employer because of their specialized skills, knowledge of the business, or responsibilities; or
  3. The 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.

An “authorized officer” of the business is responsible for making this determination, and he or she must document the facts and circumstances supporting this determination and retain it for four years.  The decision could be done on a case-by-case or group basis, depending on the factual circumstances.  

• The FMLA’s definitions apply to all terms in the Emergency Paid Sick Leave and Emergency FMLA Leave laws unless those laws included specific definitions.  The regulations clarified that under the Emergency FMLA Leave law, which did not expressly adopt the FMLA’s definition of “son and daughter” (unlike the Emergency Paid Sick Leave law, which did adopt that definition), “son and daughter” includes not just a son or daughter under 18 years old, but also those older than 18 and incapable of self-care because of a mental or physical disability. 
• The FFCRA’s framework for “teleworking” was meant to encourage employers and employees to implement “highly flexible” remote working arrangements to facilitate an employee’s ability to telework.  Consequently, an employee is able to “telework” if (a) their employer has work for the employee, (b) the employer permits the employee to work remotely, and (c) there are no extenuating circumstances that prevent the employee from performing that remote work.  Employer and employees may agree that telework is performed during normal hours or at other times.  The regulations also caution employers to ensure that teleworking employees are tracking their hours accurately to avoid off-the-clock violations, but also relaxes the “continuous workday” rule so that employers do not have to compensate employees for all time between performance of the first and last principal activities if the employee is tending to personal matters during that period.  This is consistent with the underlying purpose of the FFCRA to accommodate temporary lifestyle changes, including schedule changes needed to care for family and other responsibilities, necessitated by COVID-19.
• Employers may exclude health care providers and emergency responders from FFCRA leave requirements.  The DOL encourages employers to be judicious when deciding whether to exempt health care providers and emergency responders to minimize the spread of COVID-19.  For its part, the DOL broadly defines health care providers as “any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency.”  This includes not only medical professionals, but also other workers who are needed to keep hospitals and similar health care facilities well supplied and operational, along with 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.  Likewise, the DOL broadly defines “emergency responders” as those who keep Americans safe and with access to essential services.
• Intermittent leave pursuant to the FFCRA may only be taken upon written agreement or clear and mutual understanding between the employer and the employee.  The agreement or understanding must also identify the increments of time in which the leave may be taken.  Intermittent leave must – at all times – further the purpose of FFCRA to contain COVID-19 and, for that reason, may be more readily available to teleworkers who have flexibility in their schedule while simultaneously containing the spread of the virus than employees present at the worksite.  Intermittent leave is only available to employees continuing to report to the worksite where they need such leave (and the employer agrees to such leave) because their son or daughter’s school is closed.  The DOL limited these employees’ ability to use leave intermittently in other scenarios because it would pose an unacceptably high risk of spreading COVID-19 when reporting to work (e.g. if they are advised by a health care provider to self-quarantine due to COVID-19 concerns).
• Notices regarding FFCRA rights must be posted and available to employees.  Employers may satisfy the posting requirement by emailing or directly mailing the FFCRA notice (WHD1422 REV 03/20, available at https://www.dol.gov/whd) to the employees or posting it on an “employee information page” on its internal or external website. 
• Employees should provide notice of the need to take leave pursuant to the FFCRA as soon as practicable after the first workday is missed.  Notice may be oral but must provide enough information for the employer to determine that the requested leave is pursuant to the FFCRA.  The failure to provide proper notice cannot, by itself, constitute a basis to deny the leave, and employees who fail to provide proper notice should be notified of the failure and given another opportunity to provide the required documentation.
• Employees must provide a signed statement supporting the need for leave which, at minimum, must state (i) the employee’s name, (ii) the date(s) for which leave is requested, (iii) the COVID-19 qualifying reason for leave, (iv) a statement that the employee us unable to work or telework because of that COVID-19 reason.  Depending on the reason for leave, additional documentation may be necessary (e.g. the name of the government entity that issued the quarantine or isolation order to which the employee is subject; the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons; the name of the child being cared for; the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and a statement representing that no other suitable person is available to care for the child during the period of requested leave).  The regulations also make clear that, if the employee seeks to take regular FMLA leave because of the employee’s own serious health condition related to COVID-19 or to care for another with a serious health condition related to COVID-19, normal FMLA certification requirements apply. 
• Employees returning to work following leave, generally, are entitled to be restored to the same or equivalent positions as provided under the FMLA.  However, also consistent with the FMLA, the law does not protect an employee from employment actions such as layoffs while on leave if the employee would have been impacted had the leave not been taken. 
• Employees may not seek to apply Emergency Paid Sick Leave or Emergency FMLA Leave retroactively; that is, they cannot claim benefits for leave used before the law went into effect even if they took the leave for reasons that would have qualified under the law. 
• The FFCRA provides private rights of action for discrimination, retaliation, interfering with or denying FFCRA leave, or failure to properly pay wages in accordance with the FFCRA, including the ability to assert a collective action.  However, employees will not have a private right of action against employers for a violation of the Emergency FMLA Leave law if the employee did not meet the coverage requirements of the regular FMLA (i.e. 50 or more employees during a certain time period). 

Regulations Specific to Emergency Paid Sick Leave

• Quarantine or isolation orders “include 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 their own mobility,” which constitutes a broad interpretation of the orders that may make an employee eligible for paid sick leave.  However, the regulations almost immediately pull back from this broad-based interpretation by clarifying that employees are only entitled to paid sick leave when “but for” the order of quarantine or isolation, the employee would have been able to work or telework.  Employees are not eligible for this paid leave when the employer does not have work available for the employee – either in the office or remotely.  As an example, the regulations note that if a coffee shop closes directly because of a quarantine order aimed at that business or indirectly because the quarantine order reduces the business’s patronage, the coffee shop’s employees are not eligible for paid sick leave because there was no work available to them because the business had to close and not because the order prevented the employee specifically from working.
• Paid sick leave is not available merely because an individual self-quarantines.  The quarantine must (1) be based on a health care provider’s belief that the employee has or may have COVID-19 or is otherwise particularly vulnerable to COVID-19, and (2) prevent the employee from teleworking under any circumstances, i.e. there is no work that can be done remotely, the employer prohibits teleworking, or extenuating circumstances exist (such as serious COVID-19 symptoms or a power failure).
• Paid sick leave is available when an employee is experiencing specific, identified COVID-19 symptoms and is unable to work because they are taking affirmative steps to obtain a medical diagnosis (i.e. waiting for or attending a doctor’s appointment).  If an employee is able to telework, time spent waiting for the results of a COVID-19 test are not subject to paid sick leave.  Conversely, if an employee is unable to telework during the time waiting for a test result due to lack of work, employer’s prohibition of teleworking, or extenuating circumstances (such as serious COVID-19 symptoms), that employee would receive paid sick leave.
• Paid sick leave applies when an employee is unable to work because they need to care for an individual who is subject to a quarantine or isolation order or has been advised by a health care official to self-quarantine.  However, the leave is only available for employees who, “but for” a genuine need to care for a qualifying individual with whom the employee has a personal relationship (i.e. the relationship creates an expectation that the employee would care for the individual), would have been able to perform work and the employer had work available for the employee to perform.
• Paid sick leave is allowed when an employee must care for their son or daughter if, “but for” needing to provide that care, the employee would have been able to work and the employer had work to provide.  Further, paid sick leave is only available for the time during which the employee needs to and is actually caring for their child; an employee is generally not entitled to leave if, for instance, another parent or other child care provider is available to provide care.

Regulations Specific to Emergency FMLA Leave

• The Emergency FMLA Leave’s two week unpaid period allows the Emergency Paid Sick Leave and Emergency FMLA Leave to work together to permit an employee to have a continuous stream of income while taking FFCRA paid leave to care for their child whose place of or person of care is closed or unavailable for COVID-19 related reasons.  Thus, an eligible employee could use their Emergency Paid Sick Leave to cover the unpaid portion of the Emergency FMLA Leave due to the lack of childcare.  The leaves run concurrently as the FMLA’s first ten unpaid days is intended to span two weeks.
• If the employee exhausts their Emergency Paid Sick Leave before taking Emergency FMLA Leave, the first two weeks of Emergency FMLA Leave will still be unpaid and the remaining 10 weeks will be paid.
• The Emergency FMLA Leave does not provide additional leave beyond what the employee would have been entitled to pursuant to the FMLA.  Consequently, an employee who exhausted four weeks of their FMLA leave in January 2020 for reasons other than COVID-19 would only have eight weeks through December 31, 2020 available for COVID-19 related Emergency FMLA Leave.  If an employee has utilized all of his or her FMLA leave, they would not be entitled to further Emergency FMLA leave, but would still be eligible for the two weeks of Emergency Paid Sick Leave.