Updated: U.S. Department of Labor’s Wage and Hour Division April 3, 2020 Guidance on Leave Provisions of the Families First Coronavirus Response Act: Part III

September 17, 2020
September 17, 2020 Update. On September 16, 2020, the U.S. Department of Labor (“DOL”) published revisions and clarifications to its Temporary Rule (“Rule”) implementing the provisions of the Families First Coronavirus Response Act (“FFCRA”). Additionally, on September 11, 2020, the DOL updated its FFCRA Questions and Answers document to reflect these changes. These revisions are in response to the United States District Court for the Southern District of New York’s August ruling which vacated certain provisions of the DOL’s initial temporary rule. The revised Rule: (i) affirmed that FFCRA leave may only be taken if the employee has work from which to take leave; (ii) affirmed that, where intermittent FFCRA leave is permitted, an employee must obtain employer approval; (iii) revised the definition of “health care provider” to be consistent with the Family and Medical Leave Act (“FMLA”); (iv) clarified that an employee should provide to its employer information supporting his or her need for leave as soon as practicable; and (v) corrected an inconsistency regarding when an employee may be required to give notice of his or her intention to take leave under the FFCRA. The revised Rule became effective upon publication. The below post has been updated to reflect these changes and our updated memorandum on the Rule is available here.

September 4, 2020 Update. On August 27, 2020, the DOL issued guidance on the FFCRA and school reopenings. Our blog post on the guidance is available here.

August 6, 2020 Update. On August 3, 2020, the Southern District of New York issued a decision in New York v. U.S. Dep’t of Labor, No. 20-cv-3020 (S.D.N.Y. Aug. 3, 2020) (Oetken, J.) that vacated certain provisions of the DOL rule implementing the provisions of the FFCRA. Specifically, the decision vacated provisions of the rule that (i) prohibited employees from taking leave if an employer “does not have work” for the employee; (ii) defined “health care providers”; (iii) required employer consent for taking intermittent leave; and (iv) required employees to provide documentation related to their leave prior to taking that leave. The remaining provisions of the rule are unaffected. Notably, the Court was silent on whether its decision applies to jurisdictions other than the Southern District of New York. The below post has been updated to reflect this decision.

Additionally, on July 20, 2020, the DOL’s Wage and Hour Division provided additional guidance in its Questions and Answers documents regarding COVID-19 and (i) the Fair Labor Standards Act, (ii) the FMLA, and (iii) the leave provisions of the FFCRA. Among other things, the new guidance discusses compensation of exempt and non-exempt employees; hazard pay; “in person” telemedicine appointments; COVID-19 testing for employees; returning to work after taking FFCRA leave; and the interaction of FFCRA leave entitlements with employee furloughs. Our blog post covering this guidance is available here.
 
May 11, 2020 Update. On May 7, 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 (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. Among other things, the new guidance provides more information regarding how an employer should calculate an employee’s regular rate of pay and the hours of paid leave to which the employee is entitled under the FFCRA. Additionally, on April 20, 2020, the DOL announced the end of the temporary period of non-enforcement of the FFCRA’s leave provisions.

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, Part II, Part IV, and our July 21, 2020 post.
 
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The Families First Coronavirus Response Act, the second emergency federal legislation adopted in response to the Coronavirus pandemic (“COVID-19”), was 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 April 3, 2020, the DOL posted a webinar and provided additional guidance in its Questions and Answers document regarding the leave provisions of the FFCRA, specifically the leave provisions set out in (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”). The following are the key employer takeaways from this new guidance:
  • Inability to Work. For an employee to be eligible for leave under the Acts (“FFCRA Leave”), a COVID-19-related qualifying reason must be the cause of the employee’s inability to work, including telework. If an employer furloughs the employee, he or she is not eligible for FFCRA leave. In this circumstance, the employee may be entitled to unemployment benefits, as discussed in our memorandum on the amendments to the leave provisions in the CARES Act and our memorandum to clients on the Department of Labor’s guidance on the unemployment provisions in the CARES Act. On August 3, 2020, the Southern District of New York vacated a provision of the DOL rule that prohibited employees from taking leave if an employer “does not have work” for the employee. The DOL’s September 16, 2020 Rule reaffirmed that an employee may take FFCRA leave “only to the extent that any qualifying reason is a but-for cause of his or her inability to work” and amended its regulation to reflect its intent “that an employee is not eligible for paid leave unless the employer would otherwise have work for the employee to perform.”
     
  • COVID-19-Related Qualifying Reasons:
     
    • Subject to Quarantine Order – Sick Leave. An employee is eligible for paid sick leave under the Sick Leave Act (“Paid Sick Leave”) if he or she is subject to a quarantine, isolation, shelter-in-place, or stay-at-home order issued by any federal, state, or local government authority, and that order is the cause of the employee’s inability to work, including telework. An employee subject to a quarantine order is not entitled to Paid Sick Leave if the employer’s worksite is closed due to a quarantine or isolation order.
       
    • Advice by Health Care Provider to Self-Quarantine – Sick Leave. An employee is eligible for Paid Sick Leave if a health care provider directs or advises the employee to stay home or otherwise self-quarantine because the health care provider believes that the employee may have COVID-19 or is “particularly vulnerable to COVID-19,” and self-quarantining prevents the employee from working (or teleworking).
       
    • Experiencing Symptoms and Seeking Medical Diagnosis – Sick Leave. To be eligible for Paid Sick Leave, an employee who is experiencing symptoms of COVID-19 must seek a medical diagnosis or otherwise receive advice from a health care provider to self-quarantine. If an employee tests positive for COVID-19 or is advised by a health care provider to self-quarantine, the employee may continue to take Paid Sick Leave. An employee who is experiencing COVID-19 symptoms and unilaterally decides to self-quarantine is not entitled to Paid Sick Leave. If an employee is able, and an employer permits it, an employee may telework during a period of quarantine. An employee who becomes ill with an illness not related to COVID-19 is not entitled to Paid Sick Leave.
       
    • Caring for Family Member – Sick Leave. An employee is eligible for Paid Sick Leave to care for an individual in certain situations where providing care would prevent the employee from working or teleworking. For the employee to be eligible for Paid Sick Leave, the individual receiving care from the employee must:
       
      • (1) be subject to a quarantine order or be complying with advice from a health care provider to self-quarantine, because the individual has or may have COVID-19 or is particularly vulnerable to COVID-19,
         
      • (2) be unable to care for themselves, and
         
      • (3) “genuinely need[]” the employee for care.
         
      • The individual must be “an immediate family member,” someone who “regularly resides” in the employee’s home, or someone with whom the employee’s relationship “creates an expectation” of care.This may include the employee’s adult son or daughter (including children which are the employee’s “biological, adopted, or foster child, [the employee’s] stepchild, a legal ward, or a child for whom [the employee is] standing in loco parentis”).
         
      • An employee is not entitled to Paid Sick Leave to care for someone with whom the employee does not have a preexisting relationship, or if the individual “does not expect or depend” on the employee’s care, including because another caregiver is available.
         
    • Caring For Son or Daughter – FFCRA Leave. An employee is eligible for FFCRA Leave to care for his or her own son or daughter (“child”) whose school or place of care is closed or whose child care provider is unavailable due to COVID-19-related reasons.  An employee is eligible for up to two weeks of Paid Sick Leave, up to two weeks of unpaid leave under the Expansion Act (“Unpaid Expansion Act Leave”), and up to ten weeks of paid leave under the Expansion Act (“Paid Expansion Act Leave”) for this purpose.  The employee must need to, and actually care for, the child, and be unable to work (or telework) as a result.  An employee typically does not need leave to care for a child if another caregiver is available, including a co-parent, co-guardian, or the child’s usual care provider.
       
      • Disabled Adult Children. If the employee needs to care for a disabled, adult child who needs care and whose school or place of care is closed or whose care provider is unavailable due to a COVID-19-related reason, then the employee may take FFCRA Leave if the employee is unable to work (or telework) as a result.
         
      • Other Adult Children. An employee typically may not take FFCRA Leave to care for a non-disabled adult child whose school is closed for a COVID-19-related reason. As noted above, an employee, however, may take Paid Sick Leave to care for an immediate family member, including a non-disabled adult child, if the criteria outlined in the Caring For Family Member section above are met. Again, the employee must be unable to work (or telework) as a result of providing care.
         
      • School or Place of Care. A school or place of care is closed if its physical location is closed, even if “some or all instruction is being provided online.” A place of care is “a physical location in which care is provided for [the employee’s] child” such as “day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.”
         
      • Child Care Provider. A child care provider is “someone who cares for [the employee’s] child” such as nannies, au pairs, babysitters, grandparents, uncles, aunts, or neighbors.
         
      • Note that while an employee may be entitled to leave under the Sick Leave Act to care for an individual who is not his or her own son or daughter (see above Caring for Family Member), an employee is entitled to leave under the Expansion Act only to care for their own son or daughter.
         
    • “Substantially Similar Condition.” According to the DOL’s guidance, the U.S. Department of Health and Human Services has not yet identified any “substantially similar condition” to COVID-19 that would provide a basis for Paid Sick Leave.
       
  • Providing FFCRA Leave for Internal and Staffed Workers. Regardless of how an employer classifies or counts internal or staffed workers, an employer must provide FFCRA Leave to workers who are its “employees” for purposes of the Acts. Employers, or joint employers, must include all employees on the payroll, even if an employer provides or refers such employees to other employers. Part I of our coverage on this topic contains more guidance on how to count employees for purposes of the FFCRA.
     
    • Temporary Placement Agencies. As noted in Part II of our coverage, 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. 
  • Leave Calculation for Employees with Irregular Schedules. An employer should calculate the amount of FFCRA Leave owed to an employee with an irregular schedule as set forth below, subject to the applicable daily and aggregate caps. An employer is not required to provide FFCRA Leave to a seasonal employee who is not scheduled to work (e.g., because it is off-season).
     
    • Calculate Average Daily Hours. First, calculate the number of hours of leave the employee is entitled to take each day, which is “equal to the average number of hours each day that he or she was scheduled to work over the period of employment, up to the last six months.” For Paid Sick Leave, an employer should calculate the average number of hours an employee was scheduled to work per calendar day (not per workday) over the six-month period ending on the first day of the employee’s Paid Sick Leave. For Paid Expansion Act Leave, an employer should calculate the average number of hours the employer was scheduled to work per workday (not per calendar day) over the six-month period ending on the first day of the employee’s Paid Expansion Act Leave. An employer generally may round to the nearest tenth, quarter, or half hour, but must be consistent and round to the nearest increment that the employer typically uses to track the hours its employees work. The employer should also be mindful to consistently use any rounding principle for all employees taking FFCRA Leave.
       
    • Calculate Rate of Pay. Next, calculate the employee’s regular hourly rate of pay, which is “calculated by adding up all wages paid over the period of employment, up to the last six months, and then dividing that sum by the number of hours actually worked over the same period.” Our post in Part I covers in more detail the guidance on how an employer should calculate an employee’s regular rate of pay. An employer generally should calculate the average regular rate over all full workweeks during the six-month period ending on the first day of the employee’s FFCRA leave. If an employee has been employed less than six months, the employer should calculate the average regular rate over the full period of employment. If an employee takes FFCRA Leave intermittently, the employer should use the six-month period ending on the first day of the employee’s first FFCRA leave. 
       
    • Determine Base Daily Paid Leave Amount. Then, multiply the employee’s average daily hours by his or her hourly rate of pay to determine the employee’s base daily paid leave amount.
       
    • Determine Actual Daily Paid Leave Amount. Finally, determine the amount owed to the employee based on the type of FFCRA Leave the employee is taking.
       
      • Paid Sick Leave for Self-Care. If an employee is taking Paid Sick Leave for self-care (i.e., because the employee is subject to a quarantine order, complying with advice of a health care provider to self-quarantine, or is experiencing symptoms of COVID-19 and seeking a medical diagnosis), the employee’s base daily paid leave amount is their actual daily paid leave amount, up to $511 per day and $5,110 in aggregate.
         
      • Paid Sick Leave to Care for Another. If the employee is taking Paid Sick Leave to care for another suffering from a COVID-19-related qualifying reason, the employer should determine the employee’s actual daily paid leave amount by multiplying the employee’s daily paid leave amount by two-thirds, up to $200 per day and $2,000 in aggregate.
         
      • Paid Expansion Act Leave to Care for Another. If the employee is taking Paid Expansion Act Leave to care for the employee’s child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons, the employer should determine the employee’s actual daily paid leave amount by multiplying the employee’s daily paid leave amount by two-thirds, up to $200 per day and $10,000 in aggregate.  
  • Interaction with Worker’s Compensation or Disability Benefits. An employer is not required to provide FFCRA Leave to an employee who is unable to work and is receiving worker’s compensation or disability benefits. If, however, an employee was able to return to light duty work before taking leave and a COVID-19-related qualifying reason prevents the employee from working (or teleworking), the employee may take FFCRA Leave as warranted.
     
  • Interaction with Employer-Sponsored Leave of Absence. An employee on a voluntary employer-sponsored leave of absence may end that leave of absence, and an employer is required to provide FFCRA Leave to the employee if a COVID-19-related qualifying reason prevents the employee from working (or teleworking). An employer is not required to provide FFCRA Leave to an employee on a mandatory employer-sponsored leave of absence because the mandatory leave of absence (and not a COVID-19-related qualifying reason) is the reason the employee is unable to work. Such employees may be eligible for unemployment benefits, as discussed in our memorandum on the amendments to the leave provisions in the CARES Act and our memorandum to clients on the Department of Labor’s guidance on the unemployment provisions in the CARES Act.
     
  • FFCRA Enforcement. The DOL previously announced that it will not bring enforcement actions for FFCRA violations between March 18 and April 17, 2020 against employers that make reasonable, good faith efforts to comply. Despite this period of non-enforcement, the paid leave provisions of the FFCRA are still effective as of April 1, 2020, and employers must comply with the leave provisions contained therein. Further, the guidance provides that once the DOL begins enforcement on April 17, 2020, it intends to retroactively enforce FFCRA violations back to April 1, 2020 for employers that have not remedied violations. On April 20, 2020, the DOL announced the end of the temporary period of non-enforcement of the FFCRA’s leave provisions.
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The Coronavirus situation is fluid, and laws are changing rapidly. Our recent memoranda and other information discussing various aspects of Coronavirus can be found here.

DOL Wages and Overtime