Top 15 Practical Takeaways From the New Sick and Family Leave DOL Regulations

Written by Jeremy Mittman and Stephen Franz 

On the same day the Families First Coronavirus Response Act (“FFCRA”) took effect, the U.S. Department of Labor’s (”DOL”) Wage and Hour Division (“WHD”) posted a temporary rule issuing regulations to the FFCRA on April 1, 2020.  The rule, which expires on December 31, 2020, provides much-needed clarity to the expanded family and medical leave and emergency paid sick leave provisions of the FFCRA.  This is the latest guidance on the FFCRA from the DOL, which previously published and updated a series of “Questions and Answers” related to the law’s paid leave provisions after its enactment.  Our prior analysis of the FFCRA and how it affects employers is available here.

Because the rule answers previously unaddressed questions and clarifies the DOL’s prior guidance, Employers may need to adjust their FFCRA policies and practices accordingly.  Fortunately, the WHD will not start enforcing the FFCRA until April 18, 2020, so Employers have time to react to these new rules.

Here are the top 15 new takeaways for Employers from the rule.

1. Here are the top 15 new takeaways for Employers from the rule.
   1. 500-Employee Threshold Clarity. The FFCRA applies to Employers with fewer than 500 Employees at the time leave is requested.  In determining whether it has under 500 Employees, the Employer should include full-time and part-time Employees, Employees on leave, temporary Employees who are jointly employed by the Employer and another Employer, and day laborers supplied by a temporary placement agency.  Moreover, joint or integrated Employers must combine Employees in determining the number of Employees they employ for this purpose.  Employees who have been laid off or who are on furlough, and independent contractors do not count towards the threshold.
   2. Telework Defined. Employees are only eligible for paid leave under the FFCRA if they are unable to work at the normal workplace or telework.  “Telework” means 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: (a) his or her Employer has work for the Employee; (b) the Employer permits the Employee to work from the Employee’s location; and (c) there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the Employee from performing that work.
   3. Employees’ Notice of Leave Requirements. Employees must provide notice of need for paid sick leave or expanded family and medical leave onl  after the first missed workday, and as soon as practicable given the circumstances.  Advanced notice is not required.  Generally, it will be reasonable for the Employer to require the Employee to comply with the Employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.
   4. Documentation of Need for Leave. An Employee must provide his or her Employer with documentation in support of paid sick leave or expanded family and medical leave, including 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.  Additional documentation may be required based on the qualifying reason for leave.  For example, an Employee taking paid sick leave or expanded family and medical leave to care for a child must provide the following information: (1) the name of the child being cared 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.
   5. “Shelter in Place” Order Does Not Guarantee Paid Sick Leave. One of the reasons an Employee may take paid sick leave is if he/she is unable to work (or telework) because he/she is subject to a quarantine or isolation order related to COVID-19.  The DOL had not previously opined if paid sick leave would be provided to individuals subject to a “shelter in place” or “stay at home” order.  Now, the DOL states that while “shelter in place” or “stay at home” orders constitute quarantine or isolation orders, an Employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking.  An Employee subject to one of these orders may not take paid sick leave where the Employer does not have work for the Employee.
   6. No Paid Sick Leave for Downturn in Business. In the example the DOL provides, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its Employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.  This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier himself was subject to the order.
   7. Paid Sick Leave Requirements Due to Self-Quarantine. In order for an Employee to receive paid sick leave because of self-quarantine, the Employee must be unable to work at the normal workplace or telework.  Moreover, the advice to self-quarantine must be based on a health care provider’s belief that the Employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.
   8. Paid Sick Leave Requirements Due to COVID-19 Symptoms: An Employee experiencing COVID-19 symptoms may take paid sick leave for time spent making, waiting for, or attending an appointment for a test for COVID-19. The Employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis. While an Employee who cannot telework may continue to take paid sick leave while awaiting a test result, an Employee who is able to telework while waiting for test results may not take paid sick leave (absent extenuating circumstances, e.g. serious COVID-19 symptoms).
   9. Paid Sick Leave Requirements to Care for an Individual. Paid sick leave may not be taken to care for an individual with whom the Employee has no personal relationship. Rather, the person being cared for must be 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.  The Employee must also have work available, and cannot be able to telework while caring for the individual.
   10. No Paid Leave for Childcare if Other Caregiver Available. An Employee may take paid sick leave or expanded family and medical leave to care for his or her child only when the Employee needs to, and actually is, caring for his or her 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.  The Employee must also have work available, and cannot be able to telework while caring for the child.
   11. Recordkeeping Requirements: Employers are required to retain all documentation of FFCRA paid leave requests for four years, regardless of whether leave is granted or denied.
   12. Expanded Family and Medical Leave May Run Concurrently With Other Leave. An Employer cannot require an Employee to use another source of paid leave before taking extended family and medical leave. However, an Employee may elect to use — or an Employer may require that an Employee use — leave that under the Employer’s policies would be available to the Employee to care for a child, such as vacation or personal leave, concurrently with expanded family and medical leave.  If expanded family and medical leave is used concurrently with another source of paid leave, then the Employer has to pay the Employee the full amount to which the Employee is entitled under the Employer’s preexisting paid leave policy for the period of leave taken, even if that amount is greater than $200 per day or $10,000 in the aggregate cap.
   13. Employers’ Voluntary COVID-19 Leave Programs Don’t Change CCFRA Leave Eligibility. An Employer may not deny an Employee paid sick leave or expanded family and medical leave on the grounds that the Employee has already taken another type of leave, including leave taken for reasons related to COVID-19.  While the DOL appreciates some Employers voluntarily offered and provided such leave to help their Employees, the FFCRA still requires those Employers to provide the entirety of the paid sick leave and expanded family and medical leave.
   14. Sick Leave Doesn’t Follow Employees to New Jobs. Eligibility for sick leave is per person and not per job.  Should an Employee change positions during the period of time in which the paid sick leave is in effect, he or she is not entitled to a new round of paid sick leave at the new job.
   15. Documents to Claim Tax Credits. Employers should create and retain the following documents to support claims for tax credits: (1) how the Employer determined amount of leave paid to Employees; (2) how Employer determined amount of qualified health plan expenses allocated to wages; (3) copies of completed IRS Form 7200; (4) copies of completed IRS Forms 941; (5) Other documents needed to support its request for tax credits. A more detailed explanation of how Employers may claim tax credits can be found here, here, and here.

   Employers should consult the rules for further guidance on topics not covered in this alert, including calculating Employees’ rates of pay, Employer notice requirements, definitions of “health care providers” and “emergency responders” excluded from the FFCRA, health care coverage, return to work, multi-employer plans, and the effect of collective bargaining agreements.  Or, just contact your trusted employment counsel.