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Friday, April 3, 2020

COVID-19 Update: New Temporary Rules Regarding Emergency Paid Sick Leave and Expanded FMLA

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 related to caring for the employee’s son or daughter, if an authorized officer of the business has determined one of the following: the leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimum capacity; the absence of the employee would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities, or there are not sufficient workers who are able, willing, qualified and available at the time and place needed to perform the employee’s duties and the employee’s services are needed for the business to operate at a minimal capacity. This determination by the company’s officer must be documented and the documentation (including the facts supporting the determination) must be retained by the employer. Employers do not have to submit anything to the government to prove qualification for the small business exemption prior to claiming it.

Employers cannot require notice from the employee sooner than after the first workday for which the employee takes one of the leaves. Documentation for leave should include:

  1. For both types of leave: name of employee, dates for which leave is requested, qualifying reason for the leave, and oral or written statement that employee is unable to work because of the qualified reason for the leave;

  2. For paid sick leave because of a quarantine order: all of (a) and the name of the government entity that issued the order;

  3. For paid sick leave on advice of a health care provider: all of (a) and the name of the health care provider;

  4. For paid sick leave to care for someone else: all of (a) and either: (b) as it relates to the individual OR (c) as it relates to the individual;

  5. For paid sick leave or EFMLA to care for a child out of school: all of (a) and the name of the son or daughter being cared for, the name of the school, place of care, or child care provider that has closed or become unavailable, and a representation by the employee that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave.

In order to qualify for the FFCRA tax credit, employers should retain all documentation supporting leave and its decisions about leave, including IRS Forms 7200 and 941 related to the employee’s leave, for four years.

The new rule also contains some clarification regarding telework arrangements. Ordinarily, DOL rules assume a continuous work-day, meaning that an employer must be compensated for the time between when he or she begins work and when work ends each day. The new rules’ definition of “telework” relaxes this assumption. Under this definition, employees working remotely must be compensated only for hours actually worked. This change is intended to account for the reality that many employers will be working irregular hours from home during this unique period.

Employers must post, or otherwise communicate directly to their employees (by email, direct mail, or posting on an employee information website), the FFCRA required notice, which can be found here.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert, D. Leo Human, David A. Castleman, and Erin M. Leach.

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