The DOL Issues its Implementing Regulations Under the Families First Coronavirus Response Act
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The Department of Labor ("DOL") issued its implementing regulations on April 1, 2020, signalling how it intends to implement and enforce the Families First Coronavirus Response Act ("FFCRA"). The regulations largely track the DOL's previously-issued Q&As , but there are some new interpretations and changes to be aware of from the 124-page document. Some of the highlights include:

  • There has been some confusion over what constitutes a "quarantine or isolation" order that would qualify an employee for Emergency Paid Sick Leave and whether the various stay-at-home orders put in place by cities and counties across Texas would qualify. The DOL has defined "quarantine or isolation orders" to go beyond those issued by state or local health officials to individuals or groups of people based on possible or actual COVID-19 infection to include containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority." Therefore, due to the DOL's expansion of the original definition, it would appear that the various "stay-at-home" orders currently in-place throughout Texas would qualify as "quarantine or isolation" orders for purposes of Emergency Paid Sick Leave.

  • Notably, however, the quarantine or isolation order must result in the employee being unable to work, even though the employer has work for that employee to do, in order for the employee to qualify for Emergency Paid Sick Leave. The regulations clarify that an employee may not take Emergency Paid Sick Leave if the employer does not have work for that employee to perform as a result of the quarantine or isolation order. The DOL explains, "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." The DOL provides the following useful, illustrative example in the regulations:

  • For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, 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 . . . This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the coffee shop closed due to its customers being required to stay at home, the reason for the cashier being unable to work would be because those customers were subject to the stay-at-home order, not because the cashier himself was subject to the order. Similarly, if the order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier himself was subject to the order.

  • The FFCRA provides Emergency Paid Sick Leave and paid FMLA leave to employees who cannot work or telework because their child's school or place of care is closed or the child care provider is unavailable due to COVID-19. The regulations clarify that "child care provider" is broader than licensed or paid care providers and, instead, includes family members or friends who regularly provide care for the child.

  • If a child’s school or place of care has been closed, or the child care provider is unavailable, the employee is entitled to Emergency Paid Sick Leave and paid FMLA only if “no other suitable person is available to care for the child during the period of such leave.” In its discussion section of the regulations, the DOL explains that a “suitable individual” can be a co-parent, co-guardian, or a usual child care provider.

  • Significant attention was given to the FFCRA's use of the word "individual" in terms of employees qualifying for Emergency Paid Sick Leave to care for an "individual" under quarantine. The DOL has now defined "individual" to mean an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person whose relationship creates an expectation that the employee would care for the person under quarantine. This definition should alleviate the concern that employees would seek paid leave to "care" for someone under quarantine with whom they have no personal relationship.

  • An employee may take Emergency Paid Sick Leave if he or she is experiencing symptoms of COVID-19 and is currently seeking a diagnosis. The regulations proved that "seeking diagnosis" is limited to the time that the employee is unable to work because of the affirmative steps they are taking to obtain the diagnosis, like making an appointment, waiting for the scheduled appointment, and attending the appointment to take a COVID-19 test.

  • The regulations clarify that a health care provider can advise an employee to self-quarantine not just because he or she has COVID-19, but because the employee is "particularly vulnerable" to COVID-19. This would mean that an employee from a vulnerable population (e.g., an elderly person, a person with autoimmune issues, etc.) could qualify for Emergency Paid Sick Leave if a health care provider orders the employee to self-quarantine without a COVID-19 diagnosis.

  • The DOL provided additional guidance on how to calculate the paid leave for variable hour, part-time employees. The regulations now provide that employers should use a daily rather than a two-week average:

  • If the part-time employee has been employed for at least six months, the employee is entitled to up to the number of hours of Emergency Paid Sick Leave equal to 14 times the average number of hours that the employee was scheduled to work each calendar day over the immediately prior six-month period, including any hours for which the employee took any type of leave.

  • If the part-time employee has been employed for fewer than six months, the employee is entitled to up to the number of hours of Emergency Paid Sick Leave equal to 14 times the number of hours the employee and the employer agreed to at the time of hiring that the employee would work, on average, each calendar day. If there is no such agreement, the employee is entitled to up to the number of hours of Emergency Paid Sick Leave equal to 14 times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including hours for which the employee took any type of leave.

  • In its discussion section of the regulations, the DOL also provides that employers may use twice the number of hours that the employee was scheduled to work per workweek, on average, over the six-month period.

  • For purposes of calculating paid FMLA leave, an employer may compute the pay using hourly increments. In other words, for each hour of paid FMLA leave, the employer would pay the employee two-thirds of the employee's average hourly rate.

  • Unfortunately, the DOL's regulations are internally inconsistent as to whether and when employers can require employees to substitute accrued paid leave for paid FMLA leave, and the DOL will need to address the inconsistent provisions in subsequent guidance. That being said, the DOL did update its Q&A guidance to state that after the initial two weeks of unpaid Expanded FMLA, employers can require employees to use available paid leave:

  • If I am an employer, may I require my employee to take paid leave he or she may have under my existing paid leave policy concurrently with expanded family and medical leave under the [Expanded FMLA]?

  • Yes. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the [Expanded FMLA], you may require that your employee take concurrently for the same hours expanded family and medical leave and existing leave that, under your policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if you are not ill.

  • If you do so, you must pay your employee the full amount to which he or she is entitled under your existing paid leave policy for the period of leave taken. You must pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday and $10,000 in the aggregate, for expanded family and medical leave. If your employee exhausts all preexisting paid vacation, personal, medical, or sick leave, you would need to pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per day and $10,000 in the aggregate. You are free to amend your own policies to the extent consistent with applicable law.

  • The regulations provide needed guidance on the interplay of the 12 weeks of paid leave available under the Expanded FMLA with the 12 weeks of unpaid leave that was already available under the classic FMLA. The regulations provide that the employee is limited to 12 weeks of Expanded FMLA from April 1 to December 31, 2020, even if the 12 weeks span two of the employer’s non-calendar year 12-month FMLA periods. For example, if an employer’s twelve-month period begins on July 1, and the employee took six weeks of Expanded FMLA leave in May and June, 2020, the employee could only take up to six additional weeks of the new 12-week allotment of FMLA leave for Expanded FMLA purposes between July 1 and December 31, 2020, even though the first six weeks fell in the prior 12-month FMLA calculation period. Further, the regulations confirm that Expanded FMLA is not a new bank of FMLA leave; rather, the employee may use their existing bank for this new purpose, and if the employee has already used his or her FMLA allotment for other reasons, the employee will not have any new FMLA leave available.

  • The FFCRA provides that an employer can require employees to follow reasonable notice procedures after the first workday for which Emergency Paid Sick Leave is taken, except in the case of the closure of a school or place of care, or unavailability of a child care provider, for which notice must be given as soon as practicable. The regulations explain this requirement as follows:

  • “Reasonableness” will be determined under the facts and circumstances of each particular case.

  • Employees can be encouraged, but not required, to give notice as soon as practicable.

  • The regulations also state that if an employee fails to give proper notice, the employer should give them notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.

  • Generally, it will be reasonable for notice to be given by the employee’s representative (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally.

  • It will generally be reasonable for an employer to require oral notice and sufficient information for an employer to determine whether the requested leave is covered by the FFCRA.

  • An employer may not require the notice to include documentation beyond what is allowed by in the regulations (which is essentially identical to the documentation identified by the Internal Revenue Service as necessary for private employers to claim a tax credit). The notable difference is that, with regard to a need to care for a child due to the COVID-19-related school/place of care closure or child care provider unavailability, the employee must represent that no other “suitable” person will be providing care during the leave period.

  • Employees may not receive retroactive FFCRA leave for leave taken prior to April 1, 2020.

  • The regulations confirm that, like the classic FMLA, employees are not protected from employment actions, such as layoffs, that would have affected them regardless of the leave.

  • An employer must keep all documentation related to an employee’s Emergency Paid Sick Leave or Expanded FMLA requests for four years, regardless of whether the leave was granted or denied. In addition, if an employee provided oral statements to support their request this leave, the employer is required to document and maintain such information in its records for four years.

We understand that this is an immense amount of information to digest, and we stand ready to work with you in implementing these newly-effective laws. Please do not hesitate to call us should you have any questions.
All of KBS Law Group's Previously-Issued Guidance is Available on the Firm's Website.
In an effort to assist you in keeping track of all of the COVID-19-related guidance you have received from KBS Law Group over the last several weeks, we have linked all of our guidance on our KBS COVID-19 Guidance Website .