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REGULATIONS ISSUED BY U.S. DEPARTMENT OF LABOR FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) ON APRIL 1 PROVIDE INVALUABLE GUIDANCE

April 3, 2020

The Department of Labor (DOL) has issued regulations that provide guidance and examples to help explain FFCRA.  https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf

Below are some highlights.  

Emergency Paid Sick Leave Act (EPSLA)

The Emergency Paid Sick Leave Act (EPSLA) requires employers to provide paid sick leave to employees who are unable to work for six reasons having to do with COVID-19 where the employee:

(1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; 

  • The Regulation clarifies that 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.  
  • The question is whether the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order.  If the employer has no work for the employee who is subject to one of these orders, they are not entitled to paid sick leave.  

Example:  coffee shop closes due to a downturn in business related to COVID-19, it would no longer have any work for its employees.  Cashier is subject to a stay-at-home order and would not be able to work even if he were not required to stay at home.  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. He may be eligible for state unemployment

  • Also, if you don’t owe paid sick leave if the employer permits employee to telework and has work to perform and there are no extenuating circumstances that prevent the employee from performing that work.  An example of extenuating circumstances would be owing paid sick leave during a power outage.  

(2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 

  • As above, an employer does not owe paid sick leave if the employer permits employee to telework and has work to perform and there are no extenuating circumstances that prevent the employee from performing that work.

(3) is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; 

  • These include fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the CDC. An employee with the symptoms may take paid sick leave, for instance, for time spent making, waiting for, or attending an appointment for the test but not leave to self-quarantine without seeking a medical diagnosis.  There is no leave if can telework while waiting for test results absent extenuating circumstances, such as serious COVID-19 symptoms. 

(4) is caring for an individual who is subject to an order as described in (1), or who has been advised as described in (2); 

  • This applies only if but for a need to care for an individual, the employee would be able to perform work for his or her employer. Accordingly, an employee caring for an individual may not take paid sick leave if the employer does not have work for him or her.  The regulation further defines what type of people being cared for qualify.

(5) is caring for his or her son or daughter whose school or place of care has been closed or whose childcare provider is unavailable due to COVID-19 related reasons; or 

  • Again, the employee must be able to perform work for his or her employer but for the need to care for his or her son or daughter, which means an employee may not take paid sick leave if the employer does not have work for him or her. Also, the regulation argues you don’t need sick leave if another suitable individual can care for the child.

(6) 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.

What Employees Get

Full time employees get up to 80 hours paid sick leave.  For part-time it is an average of two weeks hours worked, although special rules may apply to varying schedules.  

Paid sick leave is at regular rate of pay rate as calculated by the FLSA or minimum wage if greater, if taking leave for items (1) through (3) above.  If minimum wage this is $511 per day or $5,110 in the aggregate.  If leave is for any other reasons such as items (3) through (6) above, then it is paid An employee who takes paid sick leave for any other qualifying reason under the EPSLA is entitled to be paid two-thirds of that amount, up to $200 per day and $2,000 in the aggregate.

The amount an employer is required to pay is capped at $511 per day of paid sick leave taken and $5,110 in total per covered employee for all paid sick leave pay. Furthermore, where an employee is taking paid sick leave at two-thirds pay, the amount of pay is subject to a lower cap of $200 per day of leave and $2,000 in total per covered employee for all paid sick leave that is paid at two-thirds pay.

Emergency Family and Medical Leave Expansion Act (EFMLEA)

The EFMLEA requires employers to provide expanded paid family and medical leave to eligible employees who are unable to work because the employee is caring for his or her son or daughter whose school or place of care is closed or whose childcare provider is unavailable due to a public health emergency, defined as an emergency with respect to COVID-19, declared by a Federal, State, or local authority. Private employers with fewer than 500 employees must comply with 9 the EFMLEA, although the Secretary has the authority to exempt by rulemaking employers with fewer than 50 employees from EFMLEA’s requirements when compliance with the EFMLEA would “jeopardize the viability of the business as a going concern.”

An employee is entitled to take up to twelve weeks of leave for the purpose described in the EFMLEA. The first two weeks (usually ten workdays) of this leave are unpaid, though an employee may substitute paid sick leave under the EPSLA or paid leave under the employer’s preexisting policies for these two weeks of unpaid leave.

The following period of up to ten weeks of expanded family and medical leave must be paid. Specifically, after the first two weeks of leave, expanded family and medical leave under the FFCRA must be paid at two-thirds the employee’s regular rate of pay.  

For each day of leave, the employee receives compensation based on the number of hours he or she would otherwise be normally scheduled to work, although special rules may apply to employees with varying schedules.

 An eligible employee may elect to use, or an employer may require that an employee use, such expanded family and medical leave concurrently with any leave offered under the employer’s policies that would be available for the employee to take to care for his or her child, such as vacation or personal leave or paid time off. The total EFMLEA payment per employee for this ten-week period is capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA.

Thus, paid sick leave and expanded family and medical leave are designed to work in tandem to provide continuous income for an employee 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. Put another way, the reason for an unpaid initial period of expanded family and medical leave is because an eligible employee already may concurrently use paid sick leave for the same reason and get paid at the same rate.

Coverage

All employees employed by a covered employer are eligible to take paid sick leave under the EPSLA regardless of their duration of employment, and all employees who have been employed by a covered employer for at least thirty calendar 30 days are eligible to take expanded family and medical leave under the EFMLEA, subject to the exceptions described.  An employee is considered to have been employed for at least thirty calendar days for purposes of EFMLEA eligibility if the employer had the employee on its payroll for the thirty calendar days immediately prior to the day that the employee’s leave would begin.

Intermittent Leave

FMLA intermittent leave rules are modified as the employee and employer must agree. Absent agreement, no leave under the FFCRA may be taken intermittently.  While not required, this agreement is best memorialized in writing.  However, if an employer directs or allows an employee to telework, subject to an agreement between the employer and employee, 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.

What is full time

Department defines a full-time employee as an employee who is normally scheduled to work at least 40 hours each workweek or for an employee who does not have a normal weekly schedule may also be a full-time employee if he or she is scheduled to work, on average, at least 40 hours each workweek. (averaged over six-month period).

How is son or daughter defined

The definition under EFMLEA for “qualifying need related to a public health emergency” as a need for leave “to care for the son or daughter under 18 years of age of such employee”.  The FMLA  definition of  “son or daughter” includes children 18 years of age or older and incapable of self-care because of a mental or physical disability.  The same definition is used for EPSLA.

Telework

Telework is defined broadly.  The regulations point outtelework is no less work than if it were performed at an employer’s worksite. As a result, employees who are teleworking for COVID-19 related reasons must always record—and be compensated for—all hours actually worked, including overtime, in accordance with the requirements of the FLSA. However, an employer is not required to compensate employees for unreported hours worked while teleworking for COVID-19 related reasons, unless the employer knew or should have known about such telework.  

The DOL appears to indicate that the continuous workday principal does not apply.  Normally, the law would indicate that all time between performance of the first compensable and last compensable principal activities is compensable work time.  Here, the DOL says an employer allowing such flexibility during the COVID-19 pandemic shall not be required to count as hours worked all time between the first and last principal activity. 

Example:

Employee may agree with an employer to perform telework for COVID-19 related reasons on the following schedule: 7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays. This allows an employee, for example, to help teach children whose school is closed or assist the employee’s parents who are temporarily living with the family, reserving work times when there are fewer distractions. Of course, the employer must compensate the employee for all hours actually worked—7.5 hours—that day, but not all 14 hours between the employee’s first principal activity at 7 a.m. and last at 9 p.m.

Employee Notice of Need for Leave

for paid sick leave or expanded family and medical leave to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons, an employer may 50 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. If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave

Documentation of Need for Leave

An employee must provide his or her employer documentation in support of paid sick leave or expanded family and medical leave to include: (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.  Further, the employee must provide the name of the governmental agency that, for example, issued the isolation order or the name of the health care provider who advised, for example, self-quarantine.  For care of child issues, the employee must provide the name of the child, school or day care provider, and statement that no other suitable person is available.  

Return to Work

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.  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 he or she had not taken leave. This provision tracks the existing provision under the FMLA in 29 CFR 825.216. The employer has the same burden of proof to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.

The FMLA’s restoration provision does not apply to an employer who has fewer than twenty-five employees if all four of the following conditions are met: 

(a) The employee took leave to care for his or her son or daughter whose school or place of care was closed or whose childcare provider was unavailable; 

(b) The employee’s position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by a public health emergency (i.e., due to COVID-19 related reasons) during the period of the employee’s leave; 

(c) The employer made reasonable efforts to restore the employee to the same or an equivalent position; and

d) If the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts for a period of time to contact the employee if an equivalent position becomes available. The period of time is specified to be one year beginning either on the date the leave related to COVID-19 reasons concludes or the date twelve weeks after the employee’s leave began, whichever is earlier.

Contact one of the attorneys at Hite, Fanning & Honeyman LLP for further assistance

Gaye Tibbets

316-269-0217

tibbets@hitefanning.com

Jon Newman

316-269-0214

Newman@hitefanning.com

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