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Coronavirus E-blast - DOL Publishes Regulations Clarifying Paid Leave under the Families First Coronavirus Response Act
On April 1, 2020, the day the Families First Coronavirus Response Act ("Family First Act") took effect, the Department of Labor ("DOL") released temporary regulations clarifying and implementing the new paid sick and family leave requirements for employers with fewer than 500 employees. On April 6, 2020, the DOL finalized and published those regulations. The regulations, contained in a final rule which can be found here, cover a lot of ground. Below are some of the most important information and clarifications contained in the newly published regulations.
Employees Subject to Stay at Home or Shelter in Place Orders
The regulations specifically address the question of whether an employee is entitled to paid sick leave when the employer does not have work available for the employee, either because the company is shut down or the job at which the employee was working was shut down and no other work is available for the employee. In these instances, the DOL notes the employee is only entitled to paid sick leave if the employee would be working "but for" the quarantine or isolation order (which includes stay at home or shelter in place orders). The regulations specifically state that:
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.
If an employer or project is forced to close, the employee is not entitled to paid sick leave. The regulations state that this is because the employee would be unable to work even if the employee was not required to comply with the stay-at-home or shelter-in-place order. This means that the employee will not be eligible for paid sick leave even if the closure of the business was substantially caused by a stay-at-home or shelter-in-place order. The regulations go on to state that the employee may be eligible for state unemployment benefits or insurance.
Employees Experiencing Symptoms of COVID-19
If an employee is experiencing symptoms of COVID-19, the regulations clarify that the employee will only be eligible for paid sick leave for the time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis. The regulations state that:
An employee experiencing COVID-19 symptoms may take paid sick leave, for instance, for the time spent making, waiting for, or attending an appointment for a test for COVID-19. But, the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.
Employees Caring for Children Due to COVID-19
The regulations clarify that an employee may only take paid sick leave to care for a child when the employee needs to, and actually is, caring for the child. The regulations specifically state that "an employee does not need to take such leave if another suitable individual - such as a co-parent, co-guardian, or the usual child care provider - is available to provide the care the employee's child needs."
Small Business Exemption
The regulations make clear that the small business exemption from having to provide both paid sick leave and emergency medical leave is only available for employees taking paid sick leave or emergency medical leave due to the employee's need to care for a son or daughter whose school has closed (or child care provider is closed) due to COVID-10 reasons and the requirements of the Families First Act would jeopardize business viability. A small employer is not exempt from the other paid-leave requirements in the Family First Act.
A small business is exempt from the new paid sick leave and emergency family medical leave requirements only if the employer has fewer than 50 employees and when:
(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 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 the labor or services are needed for the small employer to operate at a minimal capacity.
However, the regulations state that a small employer may deny paid sick leave and emergency medical leave "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."
Additionally, the regulations state that if a small business decides to deny paid sick leave or emergency medical leave to an employee whose child's school or place of care is closed, the small employer must carefully document the facts and circumstances that justify such a denial.
Notably, here is no applicable process - the exemption applies if the employer determines it satisfies the three elements above.
Documentation Requirement
The regulations provide additional guidance as to the necessary information and documents employees must provide to be eligible for paid sick leave. For all employees requesting paid sick leave, the employee must provide a signed statement containing 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.
In addition, the regulations require an employee to provide additional documentation depending on the COVID-19 qualifying reason:
- An employee requesting paid sick leave due to a quarantine or isolation order must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.
- An employee requesting paid sick leave because the employee has been advised by a health care provider to self-quarantine must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.
- An employee requesting paid sick leave because the employee is caring for an individual due to subject to a quarantine or isolation order or been advised by a health care provider to self-quarantine 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.
- An employee requesting to take paid sick leave to care for a child whose school or place of care is closed due to COVID-19 reasons 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
.
We will send out new e-blasts as soon as additional clarifications and regulations become available. We will be here for you throughout this pandemic. Stay safe.
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