ATTENTION: ALL EMPLOYERS
THE U.S. DEPARTMENT OF LABOR HAS PUBLISHED REGULATIONS FOR THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT
While continuing to issue FAQs on the Families First Coronavirus Relief Act (“FFCRA”), which went into effect on April 1 st , the Department of Labor finally issued its much anticipated regulations, a full version of which can be found HERE . Many employer questions were already answered though the FAQs (the most recent full version of the FAQs can be found HERE ), but the regulations – which are effective immediately – do provide some additional clarity in certain areas.
Some of the key points for employers are summarized here:
- Required documentation for COVID Paid Sick Leave and COVID FMLA: The DOL regulations now clarify the record keeping requirements under FFCRA (which will be important, especially for employers who will be seeking tax credits). Documentation supporting an employee request for COVID Paid Sick Leave or COVID FMLA must include a statement signed by the employee containing the following information
- the employee’s name;
- the date(s) for which leave is requested;
- the COVID-19 qualifying reason for leave; and
- a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
Depending on the reason for the leave, additional documentation may be required:
- An employee requesting COVID Paid Sick Leave under “reason 1” (a federal, state or local quarantine or isolation order related to COVID-19) must provide the name of the governmental entity that issued the quarantine or isolation order applicable to the employee.
- An employee requesting COVID Paid Sick Leave under “reason 2” (a health care provider advising self-quarantine due to COVID-19 concerns), must provide the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19.
- An employee requesting COVID Paid Sick Leave under “reason 4” (caring for an individual subject to reasons 1 and 2), must provide either the name of the governmental entity that issued the quarantine or isolation order to which the individual being cared for is subject, or the name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19.
- An employee requesting COVID Paid Sick Leave and/or COVID Paid Family Leave under “reason 5” (caring for a son or daughter whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19), must provide: (i) the name of the child; (ii) the name of the school, place of care, or child care provider that is closed or became unavailable; and (iii) a statement representing that no suitable person is available to care for the child during the period of the requested leave.
- “Small Business (Under 50 employees)” exemption – note that some uncertainty remains:
We have received many questions on the small business exemption under FFCRA. Previously the FAQs provided that the exemption can only be applied in the limited situation where the employee is taking leave to care for their son or daughter whose school or place of care is closed or child care provider is unavailable for COVID-19 related reasons. The new rule re-states this, and also the 3 reasons to support a possible exemption:
- 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;
- 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
- the small employer cannot find enough other 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 these labor or services are needed for the small employer to operate at a minimal capacity.
However, in the DOL’s accompanying “discussion” of the regulations, the DOL states that for these three reasons “the employer may deny paid sick leave or expanded family and medical leave only 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, respectively.” Unfortunately, this language leaves uncertainty as to whether an employer can claim a “blanket” exemption for all of FFCRA leaves or, instead, it must analyze each request on a “case by case” basis. As this is a moving target, we recommend that at present you contact counsel before making a determination for granting or denying a request.
- Being “subject to a Federal, State or local quarantine or isolation order” for purposes of COVID Paid Sick Leave: The DOL has clarified in the regulations that COVID Paid Sick Leave would not be available for employees who are unable to work because their place of work has closed (even as a result of a government order). Rather, COVID Paid Sick Leave may be taken if the employee is subject to an order – such as a shelter-in-place or stay at home order — “that cause[s] the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order.” According to the DOL, “[t]his 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.” The DOL gives an example of a coffee shop that is forced to close by a government order. While this closure indirectly causes the employee not to be able to work, the employee is not entitled to COVID Paid Sick Leave.
- Intermittent Leave: Employees can take intermittent COVID Paid Sick Leave or COVID FMLA only if the employee and the employer agree. Even if the employee and employer agree, there are important limitations on what is permitted under COVID Paid Sick Leave. In fact, an employee seeking intermittent COVID Paid Sick Leave may only take such intermittent leave if the leave is to care for a child whose school or day care is closed or usual childcare provider is unavailable. The rationale behind this is to prevent the possible spread of COVID-19 in the workplace.
- Calculating the “regular rate of pay” for the leave pay: The DOL clarified that the regular rate of pay should be calculated using an average of the employee’s regular weekly rates over the prior 6-month period (or, if the employee has been employed for a shorter period of time, the entire span of employment), up to the date the leave is taken, weighted by the number of hours worked each workweek. The calculation, therefore, takes the total compensation (including commissions, tips, and piece rates) earned across these workweeks and divides by the total hours worked during that same period.
If you have any questions relating to this eAlert, or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are closely monitoring the rapidly changing legal landscape relating to this global pandemic. Please feel free to reach out to the NFC Attorney you typically work with or call us directly.