On April 1, 2020, the Department of Labor (DOL) issued temporary rules making changes to emergency paid sick leave and emergency family medical leave. These new rules are here. These rules interpret recent legislative enactments expanding job-protected family medical leave (EFMLA) and requiring up to 80 hours of paid sick leave (EPSLA) in response to the COVID-19 pandemic. The legislation is discussed in our March 19, 2020 update here. The new rules will be in effect from April 1, 2020 to December 31, 2020.
The new rules offer some clarification for the six EPSLA entitlements. One reason for EPSLA leave is that an employee is subject to a local quarantine or isolation order (including, for example, orders now in effect in St. Louis City and County). The new rules clarify that this applies to employees subject to an order only if the employer remains in operation and has work available and the employee cannot perform the work remotely (telework). Under the rules, an employee may take sick leave if a medical provider advises the employee to self-quarantine, among other reasons, because the employee is “particularly vulnerable” to COVID-19.
The new rules also address the scope of expanded family leave. The first two weeks of EFMLA are unpaid, unless the employee chooses to use emergency paid sick leave or other available employer-provided paid leave during that time. While these changes do not increase the total amount of family medical leave available (12 weeks), employees may in some circumstances be entitled to take up to a maximum of 14 weeks off if they do not utilize their emergency paid sick leave during their 12-week family medical leave period.
EFMLA and EPSLA leave may be taken intermittently (not consecutively) only if the employer and the employee so agree. Generally, there can be no agreement to allow EPSLA leave to be taken intermittently unless the reason for it is based on a COVID-19-related child care reason. However, it may be agreed that either type of leave can be taken intermittently if the employer directs or allows the employee to telework or if the employee normally works at home. If either type of leave is agreed to be taken intermittently such that only partial days or weeks are taken, only the amount of leave actually taken may be counted toward the employee’s total leave entitlements.
The EPSLA and EFMLA provisions apply to all employees of employers with fewer than 500 full-time and part-time employees in the United States, with the exception of health care providers, emergency responders and certain federal government employees. The definition of health care providers includes anyone employed at a doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department/agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar business, as well as entities that contract with any of these institutions to support their operation and entities that provide medical services or products. However, the rules appear to provide a limited exception to the health care provider exemption from EPSLA for employees of health care providers who have been advised by a health care provider to self-quarantine due to COVID-19 concerns.
The rules also explain how employers will qualify for the statutory small business exemption. This exemption, for employers with fewer than 50 employees, exempts employers from the requirement to provide EFMLA leave and emergency paid sick leave, if r