On April 1, 2020, the Department of Labor issued temporary regulations that provide further information about the scope and interpretation of the Families First Coronavirus Response Act (FFCRA).  The FFCRA is the new federal law that includes, among other things: 1) the Emergency Paid Sick Leave Act  (EPSLA), providing certain employees up to 80 hours of paid sick leave, and 2) the Emergency Family and Medical Leave Expansion Act (EFMLEA), which permits certain employees to take up to twelve weeks of expanded family and medical leave, ten of which are paid, for specified reasons related to COVID-19.

The attorneys of Lashly & Baer’s Coronavirus Practice Team have summarized the portions of the regulations we thought would be of particular interest to our clients as they work through the new requirements of the FFCRA.

Definitions Under Paid Sick Leave Act

The FFCRA requires paid leave for six qualifying reasons, but some of the reasons were open to some interpretation.  The regulations have clarified when an employee will be eligible for leave:

“Quarantine or Isolation Order” – Under the Emergency Paid Sick Leave Act,  a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.

“Experiencing symptoms” – An employee may take Paid Sick Leave under the EPSLA if the employee is “experiencing symptoms of COVID-19 and seeking a medical diagnosis.”  The regulations outline the following symptoms:

• fever;
• dry cough;
• shortness of breath; or
• any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention.

Any Paid Sick Leave taken for this reason is limited to time the Employee is unable to work because the Employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.

“Caring for a Son or Daughter” – The regulations explain that an Employee has a need to take Paid Sick Leave/Family Leave under the EPSLA or EMFLEA if the Employee is unable to work due to a need to care for his or her Son or Daughter whose School or Place of Care has been closed, or whose Child Care Provider is unavailable, for reasons related to COVID-19 only if no other suitable person is available to care for the Son or Daughter during the period of such leave.

Teleworking

Certain portions of the Paid Sick Leave Act allow leave if the Employee is unable to work or telework for certain reasons.  The regulations define “Telework” as work the Employer permits or allows an Employee to perform while the Employee is at home or at a location other than the Employee’s normal workplace. An Employee is able to Telework if:

1. his or her Employer has work for the Employee;
2. the Employer permits the Employee to work from the Employee’s location; and
3. there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the Employee from performing that work.

Telework may be performed during normal hours or at other times agreed by the Employer and Employee.

Use of Other PTO

An Employer may not require an Employee to first use any other paid or unpaid leave to which the Employee is entitled before the Employee uses Paid Sick Leave under the FFCRA.

However, an employee may choose, or an employer may require, that an employee use leave the employee has available under the employer’s policies to care for a child concurrently with the EFMLEA. However, the Employer is capped at taking $200 a day or $10,000 in the aggregate in tax credits for Expanded Family and Medical Leave paid under the EFMLEA.

Broad Definition of “Health Care Provider” and “Emergency Responder”

Definition of “Heath Care Provider” On September 11, 2020, the Department of Labor revised the previous definition of “Health Care Provider.” The more refined definition focuses on the specific employee role rather than the nature of the employer, however, it notably encompasses a broader range of individuals as compared to FMLA regulations.

Under the revised regulations, health care provider is limited to those individuals capable of providing health care services. The definition exempts emergency responders and anyone employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated and necessary to the provision of patient care. .

Definition of “Emergency Responder”
Consistent with the Department of Labor’s guidance and FAQs, the regulations broadly define “emergency responder” for purposes of the categories of employees who may be excluded from the sick leave and family leave requirements.

Business Exemption from Requirement to Provide Leave Under the FFCRA

An Employer, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing leave under the FFCRA when the imposition of such requirements would jeopardize the viability of the business.

A small business is entitled to this exemption if an authorized officer of the business has determined that:

• The sick leave or family leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
• The absence of the Employee or Employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
• There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting sick leave/family leave and these labor or services are needed for the small business to operate at a minimal capacity.

To elect this small business exemption, the Employer must document that a determination has been made pursuant to the criteria outlined above. The Employer should not send such documentation to the Department, but rather retain the records in its files.

Regardless of whether a small Employer chooses to exempt one or more Employees, the Employer is still required to post a notice of the law provided by the Department of Labor.

Intermittent Leave

Generally, an employee may take Paid Sick Leave or Expanded Family and Medical Leave intermittently (i.e., in separate periods of time, rather than one continuous period) only if the Employer and Employee agree. The Employer and Employee may memorialize in writing any agreement under this section, but a clear and mutual understanding between the parties is sufficient.

However, employees who continue to report to an employer’s worksite (as opposed to teleworking) may only take paid sick leave or expanded family and medical leave intermittently and in any increment— subject to the employer and employee’s agreement—in circumstances where it would be safe and there would be only a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite.

Documentation Employee Must Provide Regarding Need for Leave

An employee must provide his or her employer documentation in support of paid sick leave or expanded family and medical leave. Such documentation must include 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.

An employee must provide additional documentation depending on the COVID-19 qualifying reason for leave. An employee requesting paid sick leave pursuant to a quarantine 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 pursuant to advice from a health care provider 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 to care for an individual 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 son or daughter due to a school closure or child-care closure, or expanded family and medical leave to care for his or her child must provide the following information:

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 the period of requested leave.

For leave taken under the FMLA for an employee’s own serious health condition related to COVID-19, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply.

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.  However, 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.   As noted in the EFMLEA, there are also some exceptions for employers with less than 25 employees.

Record Retention

An employer is required to retain all documentation provided pursuant to the FFCRA for four years, regardless of whether leave was granted or denied. If an Employee provided oral statements to support his or her request for paid sick leave or expanded family and medical leave, the employer is required to document and retain such information for four years. If an employer denies an employee’s request for leave pursuant to the small business exemption of the FFCRA, the employer must document its authorized officer’s determination that the prerequisite criteria for that exemption are satisfied and retain such documentation for four years.   The regulations also detail what documents the employer should create and retain to support its claim for tax credits from the Internal Revenue Service (IRS). A more detailed explanation of how Employers may claim tax credits can be found at https://www.irs.gov/forms-pubs/about-form-7200.

Limit of Paid Sick Leave (Can’t Obtain More than 80 Hours Total)

An individual is limited to a total of 80 hours Paid Sick Leave. An Employee who has taken all such leave and then changes Employers is not entitled to additional Paid Sick Leave from his or her new Employer. An Employee who has taken some, but fewer than 80 hours of Paid Sick Leave, and then changes Employers is entitled only to the remaining portion of such leave from his or her new Employer and only if his or her new Employer is covered by the Emergency Paid Sick Leave Act.

The full U.S. Department of Labor Temporary Regulations pertaining to the FFCRA that were published on April 1, 2020, can be found here:

https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf

Who to Contact:

Please reach out to your Lashly & Baer attorney or one of the Cross-Disciplinary Coronavirus Practice Team Attorneys if you have any questions about the notice requirements, communications with your employees about the new sick leave/family leave requirements, or employee handbook updates about sick leave and family leave.

Prepared by:

Julie Z. Devine
Phone: 314-436-8329
Email: jdevine@lashlybaer.com

James C. Hetlage
Phone: 314-436-8322
Email: jhetlage@lashlybaer.com

This summary and legal alert is an overview of the new guidance. It is not intended to be, and should not be construed as, legal advice for a specific factual situation.