Updated: U.S. Department of Labor’s Wage and Hour Division Issues Additional Guidance on Leave Provisions of the Families First Coronavirus Response Act: Part II

March 31, 2020
May 11, 2020 Update.  On May 7, 2020, the Department of Labor’s Wage and Hour Division (the “DOL”) provided additional guidance in its Questions and Answers document regarding the leave provisions of the Families First Coronavirus Response Act (the “FFCRA”).  Among other things, the new guidance provides that (i) domestic service workers are entitled to paid leave under the FFCRA when they are “economically dependent” on the household in which they work; (ii) if a worker is employed by a temporary placement agency with more than 500 employees, and is placed at a business with less than 500 employees, the second business must provide the worker with paid leave under the FFCRA if it is found to be a “joint employer”; (iii) employees who have been teleworking with children in the home over the past several weeks may still be eligible for paid leave under the FFCRA to care for a child in certain circumstances; (iv) an employee seeking paid leave under the FFCRA to obtain a medical diagnosis may be required to identify his or her symptoms and a date for a test or doctor’s appointment, but may not be required to provide further documentation or similar certification that he or she sought a diagnosis or treatment; and (v)  employees may be eligible for paid leave under the FFCRA if a summer child care provider, such as a summer camp, is closed for a COVID-19-related reason.

April 22, 2020 Update.  On or around April 20, 2020, the DOL provided additional guidance in its Questions and Answers document regarding the leave provisions of the FFCRA.  Among other things, the new guidance provides that (1) an employer that closes a worksite because of a quarantine or isolation order is not required by the FFCRA to provide paid leave to its employees who are unable to work as a result of the closure, and (2) during the otherwise unpaid leave under the Expansion Act, an employee may choose to take certain paid leave that the employer provides under preexisting leave policies, but an employer may not require an employee to do so.  Additionally, on April 20, 2020, the DOL announced the end of the temporary period of non-enforcement of the FFCRA’s leave provisions.

April 16, 2020 Update.  On April 6, 2020, the DOL published a temporary rule implementing the leave provisions of the FFCRA, which was amended in part on April 10, 2020 (the “Rule”).  The Rule provides in part that an employer and employee may agree that the employee can take intermittent leave “in any increment of time” to care for a son or daughter whose school or place of care is closed or care provider is unavailable for a COVID-19-related reason.  See 29 C.F.R. § 826.50(b)(1).  In light of the Rule, the guidance referenced below should be interpreted to allow an employee taking child care leave to take intermittent leave in less than full-day increments, to the extent that the employer and employee agree to such an arrangement.  Our memorandum covering the Rule is available here.

April 6, 2020 Update.  The DOL revised its guidance to provide that an employer may require an employee to take certain preexisting leave concurrently with paid child care leave under the Expansion Act.

The DOL continues to update and provide additional guidance in its Questions and Answers document, and, in addition to the below post, our other posts on the guidance are available here: Part I and Part III.  The below post has been updated to reflect this new guidance.
 
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The Families First Coronavirus Response Act (the “FFCRA”) was the second emergency federal legislation adopted in response to the Coronavirus pandemic (“COVID-19”), enacted on March 18, 2020.  Our memorandum to clients regarding the leave and tax credit provisions of the FFCRA, which apply only to private employers with fewer than 500 employees and to public entities, is available here, and our post regarding the U.S. Department of Treasury, IRS, and U.S. Department of Labor March 20, 2020 joint news release regarding their plan to implement the leave and tax credit provisions of the FFCRA is available here.  The FFCRA was amended nine days after its enactment, in the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), the third emergency federal legislation adopted in response to COVID-19.  Our memorandum to clients covering how the CARES Act amended the leave and tax provisions of the FFCRA is available here.

On March 24, 2020, the DOL issued its first round of guidance regarding the leave provisions of the FFCRA, specifically (1) the Emergency Family and Medical Leave Expansion Act (the “Expansion Act”), and (2) the Emergency Paid Sick Leave Act (the “Sick Leave Act” and, together with the Expansion Act, the “Acts”).  On March 27 and 28, 2020, the DOL provided additional guidance regarding these provisions in a Questions and Answers document.  The DOL has continued to update its Questions and Answers document, and our other posts on this guidance are available here: Part I and Part III.

The following are the key employer takeaways from this guidance:
  • Documentation:
     
    • Sick Leave Act. An employer may require an employee seeking paid sick leave under the Sick Leave Act to provide appropriate documentation of the qualifying reason for requesting leave and a statement that the employee is unable to work, as well as information such as the employee’s name and the dates for which the employee is requesting leave.  Documentation regarding the qualifying reason for the paid sick leave should include, for example, information about the source of any quarantine or isolation order, or the name of the health care provider who has advised the employee to self-quarantine. An employee seeking paid leave under the FFCRA to obtain a medical diagnosis may be required to identify his or her symptoms and a date for a test or doctor’s appointment, but may not be required to provide further documentation or similar certification that he or she sought a diagnosis or treatment.
       
    • Expansion Act. An employer may require an employee seeking expanded family and medical leave under the Expansion Act to provide documentation showing that the employee is unable to work because the employee needs to care for a child who cannot attend school, or whose child care provider is unavailable.  Appropriate documentation includes a notice of closure or unavailability from the child’s school or place of care, such as a notice posted on a government, school, or day-care website, published in a newspaper, or emailed from an employee or official of the school or place of care.
       
    • Recordkeeping Required to Claim Tax Credits. If an employer intends to claim a tax credit under the FFCRA, it should retain appropriate documentation in its records, and consult applicable forms, instructions, and information provided by the Internal Revenue Service regarding the procedures that it must follow to claim a tax credit, including any substantiation to be retained to support the credit.
       
    • No Requirement to Provide Leave If Insufficient Documentation Provided. An employer is “not required to provide leave if materials sufficient to support the applicable tax credit have not been provided” by the employee.
  • Eligible Employees.  Under both the Expansion Act and Sick Leave Act, employees who meet the definition of “employee” under the Fair Labor Standards Act (“FLSA”) are eligible, including full-time and part-time employees and “joint employees” working at an employer’s worksite temporarily and/or through a temporary employment agency.  There is one important difference between the Acts:  Although employees are eligible for paid leave under the Sick Leave Act regardless of the length of their employ, employees are eligible for leave under the Expansion Act only if they have been employed for 30 calendar days.  The CARES Act amended the Expansion Act to provide that eligible employees also include an “employee who was laid off by that employer not earlier than March 1, 2020, had worked for the employer for not less than 30 of the last 60 calendar days prior to the employee’s layoff, and was rehired by the employer.”
     
    • Domestic Service Workers.  Domestic service workers such as landscapers, cleaners, or home child care providers are entitled to paid leave under the FFCRA if they are employed by an entity or individual who is considered an employer under the FLSA.  An FLSA employment relationship exists where the “domestic service workers are economically dependent on [the household] for the opportunity to work,” such as “a nanny who cares for [the household’s] children as a full-time job, follows [the household’s] precise directions while working, and has no other clients.”  Domestic service workers are not entitled to paid leave under the FFCRA if they are not economically dependent on the household, such as “a handyman who works . . . sporadically on a project-by-project basis, controls the manner in which he or she performs work, uses his or her own equipment, sets his or her own hours and fees, and has several customers.”  DOL noted that paid leave under the FFCRA need not be provided to workers who are employed by a third-party service provider with whom there is a contractual relationship to provide specific domestic services.  The determination of whether an FLSA employment relationship exists is “complicated and fact-specific.”
       
    • Temporary Placement Agencies.  If a worker is employed by a temporary placement agency with more than 500 employees, and is placed at a business with less than 500 employees, the temporary placement agency is not required to provide paid leave under the FFCRA, because it has more than 500 employees.  The second business must provide the worker with paid leave under the FFCRA if it is found to be a joint employer, i.e., when it “directly or indirectly exercises significant control over the terms and conditions of [the worker’s] work,” such as by exercising the power to hire or fire the worker, supervising and controlling the worker’s schedule or conditions of employment, determining the worker’s rate and method of pay, and maintaining the worker’s employment records.  In this situation, the temporary placement agency is prohibited from discharging, disciplining, or terminating the worker for taking paid leave under the FFCRA, even though it is not required to provide such leave.
     
  • Child Care Leave.  An eligible employee is entitled to up to two weeks of paid leave to care for a son or daughter under the Sick Leave Act and up to an additional 10 weeks of paid leave to care for a son or daughter under the Expansion Act, if the employee is unable to work because the child’s school or place of care is closed or care provider is unavailable because of COVID-19-related reasons.  A “son or daughter” is an employee’s “own child,” which includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child for whom the employee is standing in loco parentis.  Although the text of the Expansion Act requires a son or daughter to be under 18 years of age, “[i]n light of Congressional direction to interpret definitions consistently,” and because the Sick Leave Act does not require a son or daughter to be under 18 years of age, the guidance states that the DOL determined that a “son or daughter” for both Acts is also a son or daughter who is 18 years of age or older who (1) has a mental or physical disability, and (2) is not capable of self-care due to the disability.
     
    • Leave To Care For Children During Summer Vacation.  Paid leave under the FFCRA is not available to care for children whose school is closed for summer vacation, or any other reason that is not related to COVID-19.  An employee, however, may be able to take paid leave under the FFCRA if his or her child’s care provider during the summer, such as a summer camp in which the employee’s child is enrolled, is closed or unavailable for a COVID-19-related reason.
       
  • Small Business Exemption for Child Care Leave.  An employer with fewer than 50 employees need not provide child care leave to an employee or employees if it would “jeopardize the viability of the small business as a going concern.”  To claim this exemption, an authorized officer of the employer must determine that any of the following three conditions are met:
     
    • Providing child care leave “would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity”;
       
    • Providing child care leave to the employee or employees requesting it would pose a “substantial risk” to the employer because of the employees’ “specialized skills, knowledge of the business, or responsibilities”; or
       
    • The employee or employees requesting child care leave are needed for the employer to “operate at a minimal capacity,” and the employer will not be able to hire “sufficient workers” to provide the labor or services otherwise provided by the employee or employees requesting child care leave.
       
  • Inability to Work Due to COVID-19. An employee is unable to work, including telework, due to COVID-19 if: (1) the employer has work for the employee to do; and (2) one of the qualifying reasons listed in the FFCRA prevents the employee from being able to do that work.
     
    • Teleworking.  An employer is not required by the FFCRA to provide paid leave to an employee who is able to work at a location other than his or her normal workplace.  If an employer permits teleworking, but an employee is unable to perform that telework due to a qualifying reason related to COVID-19, the employee would be considered unable to work under the FFCRA.  When employees that have been teleworking for several weeks later request to take paid leave under the FFCRA to care for a child, despite having teleworked with the child at home for several weeks, the employer may require that the employee provide the qualifying reason he or she is taking leave, and submit an oral or written statement that the employee is unable to work because of this reason.  The employer “may ask” the employee whether there are changed circumstances, but “should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.”  DOL noted that the fact that an employee has been teleworking despite having his or her children at home does not mean that the employee cannot now take leave to care for his or her children whose schools are closed for a COVID-19-related reason.  Examples of legitimate reasons for such a situation include an employee who may not have been able to care effectively for the children while teleworking, or an employee who made the decision to take paid sick leave or expanded family and medical leave to care for the children so that the employee’s spouse, who is not eligible for any type of paid leave, could work or telework.
       
    • Alternative Work Schedules.  If an employer and employee agree that an employee’s normal number of hours can be worked outside of that employee’s normally scheduled hours, such an arrangement will not justify leave under the FFCRA unless a qualifying reason prevents the employee from working the alternative schedule.
       
  • Intermittent Leave. The DOL “encourages employers and employees to collaborate to achieve flexibility and meet mutual needs” and is “supportive of . . . voluntary arrangements that combine telework and intermittent leave.”  As such, an employer may agree to allow an employee to take intermittent leave under the FFCRA, subject to the restrictions set forth below.
     
    • Teleworking. An employer may allow an employee who is teleworking to take leave intermittently under the FFCRA, in any increment, if the employee meets one of the qualifying reasons for leave.
       
    • Child Care Leave.  An employer may allow both on-site and teleworker employees to take leave intermittently, in any increment, to care for a child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19-related reasons.
       
    • Paid Leave Other Than Child Care Leave.  An employee who is not teleworking may not take intermittent leave other than child care leave.  Once an employee who is not teleworking begins taking paid sick leave other than child care leave for a COVID-19 qualifying reason, that employee must continue to take paid sick leave each day until the employee either (1) uses the full amount of paid sick leave, or (2) no longer has a qualifying reason for taking paid sick leave.  If the employee’s qualifying reason for taking paid leave stops before the employee uses the full amount of paid sick leave available under the Sick Leave Act, the employee is entitled to take the remainder of the paid leave at a later time for a qualifying reason, until December 31, 2020.
       
  • Worksite Closures, Furloughs, and Reduced Work Hours:
     
    • Worksite Closures. An employer is not required by the FFCRA to provide paid leave to an employee if the employer closes the employee’s worksite before the employee takes leave, even if (1) the employee requested leave before the closure, or (2) the employer plans to reopen the worksite in the future.  It does not matter whether the worksite closed due to lack of business or because of a federal, state, or local directive.  For example, if an employer closes a worksite because of a quarantine or isolation order, the employer is not required by the FFCRA to provide paid leave to its employees who are unable to work as a result of the closure.  If an employer closes an employee’s worksite while the employee is on paid leave under the FFCRA, the employer must pay the employee for any leave used before the closure, but is not required by the FFCRA to provide paid leave after the closure.  Employees whose worksites are closed may be eligible for unemployment benefits.
       
    • Furloughed Employees.  An employer is not required by the FFCRA to provide paid leave to an employee furloughed for lack of work or business.  Furloughed employees may be eligible for unemployment benefits.
       
    • Reduced Work Hours.  An employer who reduces an employee’s work hours is not required by the FFCRA to provide paid leave to that employee for the hours the employee is no longer scheduled to work, unless a COVID-19 qualifying reason prevents the employee from working the reduced schedule.
       
    • Unemployment Benefits.  If an employer provides an employee with paid leave under the FFCRA, the employee cannot also collect unemployment benefits.  The DOL recently clarified, however, that states have additional flexibility to extend partial unemployment benefits to employees whose pay or hours of work have been reduced.
       
  • Job Protections. An employee “[g]enerally” has “a right to return to work” after taking paid sick leave under the Sick Leave Act or expanded child care leave under the Expansion Act.  Although the Sick Leave Act did not include a provision regarding job protections, “[i]n light of Congressional direction to interpret requirements among the Acts consistently,” the guidance states that the DOL determined that “the Acts require employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave.”  However, an employer may refuse to allow an employee taking leave to return to work as set forth below:
     
    • Business Reasons.  An employer can lay off an employee taking leave if the employer can demonstrate that the employee “would have been laid off even if [the employee] had not taken leave,” including for “legitimate business reasons” such as worksite closures. 
       
    • Key Employees.  An employer may refuse to return to work a highly compensated “key” employee, as defined under the FMLA, who takes leave under the Expansion Act.  
       
    • Employers With Fewer Than 25 Employees.  An employer with fewer than 25 employees may refuse to return to work an employee who took child care leave under the Expansion Act if four conditions exist, as set forth below.  Although this exception clearly applies to an employee who took expanded child care leave under the Expansion Act, it is unclear whether this exception also applies to an employee who took paid sick leave under the Sick Leave Act to care for a child whose school or place of care was closed or care provider was unavailable due to COVID-19.  Further, this exception seems somewhat redundant of the legitimate business reasons exception set forth above, which is not restricted to employers with fewer than 25 employees or to employees taking child care leave. 
       
      • Economic Conditions.  The employee’s position is eliminated during the employee’s leave (1) because of “economic or operating conditions” affecting employment, and (2) due to COVID-19-related reasons;
         
      • Reasonable Restoration Efforts.  The employer makes “reasonable efforts” to restore the employee to “the same or an equivalent position”;
         
      • Reasonable Efforts to Contact.  The employer makes “reasonable efforts” to contact the employee “if an equivalent position becomes available”; and
         
      • Continuing Reasonable Efforts to Contact.  The employer continues to make “reasonable efforts” to contact the employee “if an equivalent position becomes available” for one year after the earlier of the date (1) the employee’s leave ended under the FFCRA, or (2) 12 weeks after the employee’s leave began.
         
  • Health Coverage. An employer must continue to provide health coverage to an employee taking leave under the FFCRA who is enrolled in group health coverage, including family coverage, “on the same terms” as if the employee continued to work.  The employee generally must continue to make normal contributions to the cost of health coverage.
     
    • Waiting Period. If an employee takes paid sick leave during an employer’s waiting period for health coverage, the health coverage must take effect on the date that it otherwise would have if the employee had not taken paid sick leave. 
       
  • Interaction With FMLA Leave. An employer is required to provide paid sick leave under the Sick Leave Act, regardless of whether the employee previously took FMLA leave.  However, an employer covered by the FMLA before April 1, 2020 is not required to provide an employee more than 12 total work weeks of FMLA leave and expanded child care leave under the Expansion Act during a 12-month period.  An employee who has taken some FMLA leave during the current 12-month period is entitled to take the balance of FMLA leave under the Expansion Act.  An employee who has already taken all FMLA leave during the current 12-month period is not entitled to take additional expanded child care leave under the Expansion Act.  If an employee takes expanded child care leave under the Expansion Act, the leave taken counts against the employee’s entitlement to preexisting leave, including if the employee chooses to take the first two weeks of otherwise unpaid expanded child care leave concurrently with paid sick leave under the Sick Leave Act. 
     
  • Preexisting Leave Policies:
     
    • Sick Leave Act.  An employer is required to provide paid sick leave under the Sick Leave Act in addition to any other leave provided under federal, state, or local law, an applicable collective bargaining agreement, or the employer’s preexisting leave policy.  However, an employer is not required to allow an employee to concurrently take both paid sick leave under the Sick Leave Act and paid leave that the employer provides under preexisting leave policies, including vacation, personal, medical, or sick leave.  An employer may choose to allow an employee to supplement wages paid under the Sick Leave Act with preexisting leave, up to the employee’s normal earnings.  However, an employer cannot require an employee to do so.  If an employer pays an employee more than required under the Sick Leave Act, the employer is not entitled to tax credits for the optional amounts paid.  An employer may amend its policies consistent with applicable law.
       
    • Expansion Act – Unpaid Leave.  During the first two weeks of unpaid leave under the Expansion Act, an employee may choose to take either paid sick leave under the Sick Leave Act or paid leave that the employer provides under preexisting leave policies, but not both.  An employer, however, may not require an employee to do so.  The preexisting leave must be otherwise available to the employee for this purpose (i.e., the employer’s policies must permit use of leave for the purpose for which the employee is taking leave).
       
    • Expansion Act – Paid Leave.   An employer may require an employee to concurrently take paid leave that the employer provides under preexisting leave policies and paid child care leave under the Expansion Act, or an employee may choose to do so.   The preexisting leave must be otherwise available to the employee.  For example, an employer generally may require an employee to take vacation or personal leave, but cannot require an employee to take medical or sick leave unless the employee is ill.  If an employer requires an employee to take paid child care leave under the Expansion Act concurrent with preexisting paid leave, the employer must pay the employee the full amount set by the preexisting leave policy for the taken period of leave.  If an employer pays an employee more than required under the Expansion Act, the employer is not entitled to tax credits for the optional amounts paid.  An employer may amend its policies consistent with applicable law.
       
  • Multiemployer Collective Bargaining Agreements.  An employer that is part of a multiemployer collective bargaining agreement can satisfy its obligations to provide paid leave under the FFCRA by making contributions to a multiemployer fund, plan, or other program in accordance with existing collective bargaining obligations.  Such a fund, plan, or other program must allow employees to obtain their pay for the related leave they take.  An employer may also satisfy its obligations under the FFCRA by other means, provided those means are consistent with the employer’s bargaining obligations and collective bargaining agreement.
     
    • Contributions Under Expansion Act.  An employer must make expanded family and medical leave contributions based on the amount of paid family and medical leave to which each employee is entitled to under the Expansion Act, consistent with each employee’s work under the multiemployer collective bargaining agreement.
       
    • Contributions Under Sick Leave Act.  An employer must make paid sick leave contributions based on the hours of paid sick leave to which each employee is entitled under the Sick Leave Act, consistent with each employee’s work under the multiemployer collective bargaining agreement.
       
  •  Health Care Providers:
     
    • Qualifying Health Care Providers for Purposes of Determining If an Employee Is Eligible for Paid Sick Leave. For purposes of determining whether an employee has received advice from a health care provider to self-quarantine that qualifies the employee to take paid sick leave, “health care provider” means a licensed doctor of medicine, a nurse practitioner, or another health care provider who is “permitted to issue a certification for purposes of the FMLA.”
       
    • Employer May Exclude “Health Care Providers” From Leave Under FFCRA. For purposes of determining whether an employer may exclude an employee from leave under the FFCRA, “health care provider” means “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.”  This definition also includes workers:
       
      • Employed at “any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions”;
         
      • Employed by an entity that contracts with any of the above-listed institutions, employers, or entities to “provide services or to maintain the operation of the facility”;
         
      • Employed by an entity that “provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments”; or
         
      • Whom “the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”
The guidance states that the DOL encourages employers “to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.”
  • Employer May Exclude “Emergency Responder” From Leave Under FFCRA.  For purposes of determining whether an employer can exclude an employee from leave under the FFCRA, “emergency responder” means “an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.”  Examples include “military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.”  This definition also includes any employee whom “the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”  The guidance states that the DOL encourages employers “to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.”
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements.  For more information, please visit S&C’s page regarding Coronavirus updates.

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