On April 1, 2020, the Department of Labor (DOL) released a 125-page temporary rule to implement emergency leave laws under the Families First Coronavirus Response Act (FFCRA). The temporary rule, which largely reflects the DOL’s previously released FAQs, is effective today, April 2, 2020. Note that this is not a final rule, so additional alterations may be forthcoming. For now, the highlights include:
Additional Information on Uses of Sick Leave
- Employee is subject to a quarantine or isolation order
The temporary rule states that governmental shelter in place, stay at home, or other orders that limit the employee’s mobility may count as a quarantine or isolation order. However, the temporary rule clarifies that employees subject to such an order may not take paid sick leave “where the employer does not have work for the employee.” So, for example, if the employer is shut down due to a governmental order and which prevents the employee from working, the employee does not qualify. Likewise, employees who can telework would not qualify under a quarantine or isolation order analysis, absent some extenuating circumstance (e.g., a power outage at home).
- Employee is advised by health care provider to self-quarantine
The temporary rules states that, to qualify under this reason for sick leave, self-quarantine directive “must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.” Further, the self-quarantine must prevent the employee from working, meaning, for example, if the employee is still able to telework during self-quarantine, they do not qualify.
- Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis
The temporary rules states that the employee may use sick leave where the employee is experiencing COVID-19 symptoms identified by the CDC (e.g., fever, dry cough, shortness of breath, etc.). However, use of this sick leave is limited to: “the time the employee is unable to work because the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis.” The temporary rule expressly states an “employee may not take paid sick leave to self-quarantine without seeking medical diagnosis.” Further, for an employee who is awaiting results, but is able to telework, they will generally not be eligible for paid sick leave, unless the employee’s symptoms prevent them from working altogether. Lastly, employees who show symptoms and seek medical advice, but are told they do not meet testing criteria and should self-quarantine, generally qualify unless they can telework.
- Unable to work due to caring for another individual who is subject to quarantine or isolation order, or advised to self-quarantine
The temporary rule states an employee qualifies for this reason “only if but for a need to care for an individual, the employee would be able to perform work for [their] employer.” Thus, an employee may not take sick leave if the employer does not have work for them. Further, the employee “must have a genuine need to care for the individual,” meaning they can’t take sick leave to care for someone with whom the employee “has no personal relationship.” The employee may take leave to care of “an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.”
- Unable to work due to caring for child with school/childcare closure
Reiterating the above, the temporary rule states that the employee may not take sick leave under this rule if the employer does not have work (e.g., the place of work is closed and the employee cannot telework). Further, an employee only qualifies for sick leave under this reason when the “employee needs to, and actually is, caring for” their child. “Generally, an employee does not need to take such leave if another suitable individual – such as a co-parent, co-guardian, or the usual child care provider – is available to provide the care the employee’s child needs.”
Additional Information on Qualification for Expanded Family Medical Leave
As a refresher, expended family medical care is only available to employees who are unable to work due to a need for leave to care for their child during a school or child care closure related to COVID-19. The temporary rule states that employees qualify for this leave under the same qualifications for sick leave, as described in reason #5, above.
As noted in a prior Tonkon Tip, the temporary rule states that the maximum 12 weeks of emergency family leave is reduced by the amount of FMLA leave taken in the current 12-month leave year.
The temporary rule states employers may not require advance notice of leave; notice may only be required after the first workday (or portion thereof) for which an employee takes emergency sick leave or medical leave. After the first day, an employer may require notice “as soon as practicable” under the facts and circumstances. “Generally, it will be reasonable for notice to be given by the Employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally.” The content of the notice may be oral, and contain sufficient information for the employer to determine if the requested leave is covered by the FFCRA.
Further, the employee is required to provide the following information to take leave: their name, dates requested, qualifying reason for leave, and an oral or written statement that the employee is unable to work because of the qualifying reason for leave. Additional documentation is required depending on which type of leave is requested:
- Isolation/quarantine order (name of government entity issuing the order);
- Self-quarantine order (name of the health care provider);
- Seeking medical treatment/diagnosis (name of government entity or health care provider, whichever is applicable); and
- School/childcare closure, (name of child, name of school/childcare provider, representation that no other suitable person will be caring for the child during the period for which the employee takes leave).
The employer may also request an employee to provide additional information needed for the employer to request tax credits pursuant to the FFCRA.
Other Notable Rules
Sequencing. Employees may elect to receive, or employers may require, that employees use other available paid leave the employee has available to care for a child during the two-week unpaid period of emergency family medical leave. However, if the employee elects to use emergency paid sick leave, the employer cannot force the employee to use other accrued leave first.
Record Keeping. Employers have an obligation to retain all documentation related to leave usage for four years, regardless of whether leave was granted or denied. If leave requests are granted pursuant to oral statements provided by employees, the employer is required to document and maintain such information for four years. For further recordkeeping obligations, contact your Tonkon Torp attorney.
Supplementing Paid Leave. Employers and employees may agree to supplement accrued vacation leave during emergency paid family leave (which is paid at 2/3 pay) to supplement their pay under emergency paid family leave so that the employee receives the full amount of their normal pay. For example, an employer and employee may agree to substitute one-third hour of accrued vacation leave for each hour of emergency family leave.
Job Changes. The temporary rule explains any one individual is entitled to a maximum of 80 hours of paid sick leave. In other words, an employee’s bank does not reset if they change jobs.
Small Business Exemption. Employers that believe they qualify for the small business exemption (available to employers with less than 50 employees, whose compliance with FFCRA jeopardizes the viability of the business), need not send their documented decision to the DOL at this time. However, the employer should retain such records for their own files.
If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group.