Legal Updates


Five Takeaways from the Department of Labor’s FFCRA Regulations

April 15, 2020

On April 1, 2020, the U.S. Department of Labor (DOL) issued regulations to clarify the paid leave provisions in the recently-enacted Families First Coronavirus Relief Act (FFCRA). The new regulations, which were effective as of April 2, 2020, provide detailed rules for implementing the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), which became effective on April 1, 2020, and will remain in effect until December 31, 2020, unless modified by further law.

In prior Legal Updates, we reviewed the paid leave provisions of the FFCRA and the model notices, which employers are required to post and distribute to employees. This Legal Update will review five important highlights of the FFCRA regulations.

1. The Timing of an Employee’s Notice of Leave.

Like leave requests under the Family and Medical Leave Act (FMLA), an employee requesting leave under the EPSLA and/or the EFMLEA must provide notice to his or her employer. Such notice must provide the employer with enough information to determine whether the reason for the leave requested is covered by the EPSLA or the EFMLEA. 29 CFR § 826.90(c).

Employees are not required to provide advance notice of leave taken under the EPSLA and/or the EFMLEA. 29 CFR § 826.90(b). Rather, employers may require employees to provide notice after the first workday, or portion thereof, for which leave is taken under the EPSLA or the EFMLEA. 29 CFR § 826.90(b).

It is advisable for an employer to require notice from an employee for leave under the EPSLA or the EFMLEA only after the first workday, or portion thereof, that leave is taken. Then, if an employee fails to provide proper notice, before denying the request for leave, the employer should provide the employee with notice of the failure and an opportunity to provide the notice and any required documentation.

2. The Supporting Documents for an Employee’s Leave Request.

The FFCRA provides private sector employers with the opportunity to receive certain tax credits to offset the costs of paying for employee paid leave taken under the EPSLA and the EFMLEA. In order to obtain those tax credits, employers must provide certain supporting documentation to the IRS. It is possible that subsequent legislation will provide an opportunity for public sector employers, including public school districts, to receive the same or similar funding to offset the costs of the paid leave. As a result, it is advisable for all employers to require and maintain documentation supporting the need for leave under the EPSLA and the EFMLEA.

The FFCRA includes several provisions governing documentation to support the need for leave under the EPSLA and the EFMLEA. Employers may deny the paid leave request of any employee who fails or refuses to provide the required documentation. 29 CFR § 826.100(f).

The FFCRA regulations identify the specific information and documentation that an employee must provide to an employer to justify the need for the paid leave, including:

• Employee’s name;

• Date(s) for which leave is requested;

• Qualifying reason for the leave; and,

• An oral or written statement that the employee is unable to work because of the qualified reason for leave.

In addition to the information described above, the regulations require employees to provide additional documentation to their employer depending on the reason for the leave taken under the EPSLA:

• If leave is taken because of a government issued isolation or quarantine order related to COVID–19, the name of the government entity that ordered the isolation or quarantine;

• If leave is taken because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19, the name of the health care provider;

• If leave is taken to care for someone someone[1]  who is under a government issued isolation or quarantine order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, the name of the government entity or health care provider that issued the quarantine for that individual; and

• If leave is taken to care for a child during a period of school closure (or child care facility closure), the name of the child, the name of the school or place of care, and a statement that no other suitable person is available to care for the child during the closure period.

29 CFR § 826.100.

Note: The regulations do not explicitly address the additional information needed to support an employee’s request for a leave taken because the employee is experiencing symptoms of COVID–19 and seeking medical diagnosis from a health care provider. However, there is nothing preventing the employer from requiring the employee to submit information demonstrating that the employee is seeking a medical diagnosis.

In order to ensure that an employer has the opportunity to recoup paid leave costs through the available tax credit or other funding, employers should take note of the documentation requirements and incorporate those requirements into their policies and practices.

3. The Definition of Federal, State, and Local Stay at Home Orders for Purposes of EPSLA Leave.

One of the defining government responses of the COVID-19 pandemic is the stay at home orders issued by federal, state, and local governments. As a result of these orders, many employees are forced to stay home and are unable to work.

Under the FFCRA, an employee may take EPSLA leave if the employee is unable to work because the employee is subject to a quarantine or isolation order from a government entity. The regulations explain that the federal, state and local government stay at home orders are considered quarantine or isolation orders. However, living in an area that is subject to a stay at home order does not, by itself, make an employee eligible for EPSLA leave. The regulations explain that an employee, who is subject to a quarantine or isolation order, may only take paid leave under EPSLA if, but for being subject to the quarantine or isolation order, an employee would be able to perform assigned work for the employer either at the employer’s facility or at home through telework, to the extent the employer determines that telework is available to this employee. 29 CFR § 826.20(a)(2). This means in order for an employee to qualify for paid leave under EPSLA for reason of a quarantine or isolation order, two (2) things must be true: (1) the employee must be assigned work to perform for the employer (either at the employer’s facility or through telework, as determined by the employer), and (2) the employee must be unable to perform the assigned work because of the quarantine or isolation order.

Thus, employees who are furloughed or laid off by their employer for lack of work, even if the lack of work is because of a government stay at home order, will not qualify for the paid leave provision under EPSLA “because the employee is subject to a quarantine or isolation order from a government entity”. Likewise, if an employer has work available for the employee to perform from home by telework, such employee will not qualify for the paid leave under the EPSLA “because the employee is subject to a quarantine or isolation order from a government entity”.

4. Providing EPSLA and EFMLEA Leave When an Employee Qualifies for Both.

Under the EFMLEA, an employee may take leave because the employee is unable to work due to the need to care for the employee’s son or daughter whose school or child care facility has been closed, or whose child care provider is unavailable, for reasons related to the COVID-19 pandemic. Unlike traditional FMLA leave, leave under the EFMLEA is partially paid; the EFMLEA provides the employee with twelve (12) workweeks of leave with the first two (2) workweeks being unpaid and the remaining ten (10) workweeks being paid leave. Paid leave under the EFMLEA is paid at two-thirds (2/3) of the employee’s average regular rate up to $200 per day or $10,000 in the aggregate for each employee.

One of the reasons for leave under the EPSLA is the same as the reason for leave under the EFMLEA, i.e., because the employee is unable to work due to the need to care for the employee’s son or daughter whose school or child care facility has been closed, or whose child care provider is unavailable, for reasons related to the COVID-19 pandemic. Such leave is available for two (2) workweeks and is paid at the same rate as leave under EFMLEA, i.e., $200 per day or $2,000 in the aggregate.

The regulations make it clear that when an employee requests leave because the employee is unable to work due to the need to care for the employee’s son or daughter whose school or child care facility has been closed, or whose child care provider is unavailable, for reasons related to the COVID-19 pandemic, the employee may qualify for both the two (2) workweeks of leave under EPSLA and the unpaid and paid leave under EFMLEA. Because the two (2) acts overlap in this instance, it is important for employers to understand how such leave should be provided.

Essentially, the two (2) types of leave are designed to work together. An employee, who requests leave for the qualifying reason discussed above may elect to use his or her two (2) workweeks of paid leave under the EPSLA during the first two (2) workweeks of unpaid EFMLEA leave. The result is that an employee could be paid up to twelve (12) workweeks at the rate stated above. Employees, however, are limited to only two (2) workweeks of paid leave under the EPSLA.

If, however, an employee has already used some or all of his or her EPSLA leave, or elects not to use it during the first two (2) weeks of EFMLEA leave, the first two (2) weeks of the employee’s EFMLEA leave would be unpaid, unless the employer requires or the employee elects to use accrued but unused employer-provided paid leave. 29 CFR § 826.60.

5. Supplementing EPSLA and EFMLEA Leave with Paid Leave.

The amount of paid leave to which an employee is entitled under the EPSLA and the EFMLEA is limited by the applicable pay caps in both acts. An employer may be entitled to tax credits (or other funding in the future) in an amount equal to the value of the paid leave actually provided to an employee under both acts. If the employer chooses to allow an employee to supplement his or her EPSLA and/or EFMLEA leave with accrued but unused employer-provided paid leave, the employer may not recoup the value of the supplemental leave. This does not, however, prevent an employer from allowing an employee to supplement the paid leave received under the FFCRA with any accrued but unused paid leave that the employee may otherwise be entitled to under the employer’s existing employment policies.

Take, for example, an employee who typically works forty (40) hours each workweek and requests four (4) full workweeks of EFMLEA leave. If the leave request qualifies under the EFMLEA, the employer must first provide the employee two (2) workweeks of unpaid leave under the EFMLEA. During this time, the employer may (but is not obligated to) permit the employee to use his or her accrued but unused employer-provided paid leave to supplement the EFMLEA leave in one of the following ways, as applicable:

• if the employee has not already exhausted his or her paid leave under the EPSLA, the employer must permit the employee to elect to receive two-thirds (2/3) of the employee’s regular rate of pay for each hour of leave during the two (2) workweeks (eighty (80) hours in this example) under the EPSLA; in such case, an employer may, but is not obligated to, permit the employee to supplement the EPSLA pay with his or her accrued but unused employer-provided paid leave; or,

• if the employee has exhausted or will exhaust all available EPSLA paid leave at any point during those first two (2) weeks of unpaid EFMLEA leave, the employer may require, and the employee may elect, to apply any accrued but unused paid leave earned under an employer’s existing employment policies.

29 CFR § 826.23(c); 29 CFR § 826.60.

After the first two (2) workweeks of the employee’s EFMLEA leave, the employer in this example must provide the employee the remaining two (2) weeks of requested EFMLEA leave at two-thirds (2/3) of the employee’s regular rate. During this time, the employer may, but is not obligated to, permit an employee to use accrued but unused employer-provided paid leave to supplement the EFMLEA pay amount up to his or her regular rate of pay. The employer cannot require the employee to use his or her accrued but unused employer-provided paid leave to supplement the EFMLEA leave. The employee may not demand the opportunity to use his or her accrued but unused employer-provided paid leave to supplement the EFMLEA leave. 29 CFR § 826.70(f).

For questions regarding this article, please contact the author, Attorney J.J. Hermes (email: jjhermes@strangpatteson.com; telephone: 833-654-1178 toll free), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

[1] The FFCRA regulations explain that, an individual for whom an employee may take EPSLA leave to care, includes an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined.  For this purpose, ‘‘individual’’ does not include persons with whom the employee has no personal relationship.  29 CFR § 826.20(a)(5).

 

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