At the end of last week, the Department of Labor issued 125 pages of FFCRA guidance, including actual temporary regulations and 20 new Q&As (so we are now up to 79 — but who’s counting?). While a full summary of these regulations would be quite long, we are breaking it up into multiple parts (so stay tuned for more installments).
Recap of FFCRA Basics
As a reminder (like any of us could forget), we are talking about Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave Act leave (EFMLA).
The six reasons for EPSL (826.20(a)) are that an employee (no matter how long they have worked for you (§ 826.30(a)) is unable to work or telework because he or she:
- Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Has been advised by a healthcare provider to self-quarantine related to COVID-19;
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- Is caring for an individual subject to an order described in (1) or is self-quarantined as described in (2);
- Is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
- Is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.
The only reason for EFMLA is child care (reason (5)), and only employees who have worked for you for 30 days are eligible (§ 826.30(b)).
Are You a Covered Employer and What about the Small Employer Exemption? (§ 826.40)
If you are a private entity or individual that employs fewer than 500 employees (full-time and part-time in the U.S.), you are covered. There are lots of ways to count employees, including those on leave or temporary employees who are jointly employed, as well as employees of integrated employers or successors in interest. A public agency is covered if it employs one or more employees.
As noted in the prior Q&As, the small employer exemption is available to employers with fewer than 50 employees if providing leave for child care (either EPSL or EFMLA) would “jeopardize the viability of the business as a going concern.” This does not exempt a small business from providing EPSL for the other EPSL reasons.
You do not apply to the DOL for this exemption. Instead, you must document that an “authorized officer of the business has determined” one of three things:
- Providing the leave would result in your “expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;”
- The absence of the employee requesting the leave would put financial health or operational capabilities at “substantial risk” because of the employee’s “specialized skills, knowledge of the business, or responsibilities;” or
- There are not sufficient workers who can perform the labor or services provided by the employee seeking the leave and you need those services “to operate at a minimal capacity.”
The regulations anticipate that this is a case-by-case assessment. It will depend on how many employees request the leave, what jobs each one fills, and your financial situation at the time. It is clearly not a one and done proposition.
When Do You Have to Post a Notice about FFCRA Leave? (§ 826.80)
Now. If you are a covered employer – even if you have fewer than 50 employees (§ 826.40(b)) – post the notice immediately.
Get the DOL’s model notice, and get it up right away and make sure it stays up. If you prefer, you can email or direct mail it to employees (making sure you get some acknowledgement that each person received it) or post it on your internal or external website.
Does a Shelter-in-Place or Stay-at-Home Order Count as an Isolation Order? (§ 826.10(a))
These regulations define “subject to a quarantine or isolation order” for EPSL reason (1) as including “containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority” that cause an employee to be unable to work even though the employer has work the employee could perform but for the order. So, if a government order shuts your business down, then you do not have work for the employee to perform and there is no need for EPSL. On the other hand, if your business is operational and you have work for the employee to do, but the employee cannot perform the work because of a “safer at home” order (or the like), then the employee may be eligible for EPSL.
Review these stay-at-home orders carefully to determine if your business is “essential.” If your business is essential, you can continue to operate. If you have work for the employee to perform, then the employee may not be subject to the order for work purposes and would not qualify for EPSL, unless the order prevents the employee from working. Whether your business is essential and whether an essential business can declare that all workers are essential depends on the government order.
Another wrinkle on this theme is that some shelter-in-place orders advise categories of citizens (e.g., certain age ranges or medical conditions) to stay at home. In that case, if your employee falls into one of those categories, he or she may be entitled to EPSL under reason (1).
How Does an Employee Request Leave? (§ 826.90)
You can require an employee to follow “reasonable notice procedures” to take EPSL but you cannot require notice in advance of the leave – only after the first workday (or portion of a workday) the employee takes it (§ 826.90(b)). What constitutes “reasonable notice procedures” is not defined and will be determined on a case-by-case basis. Note that these “reasonable notice procedures” do not apply to EFMLA or EPSL taken for child care (5) for which the employee is to give notice as soon as practicable if the need for leave was foreseeable. In either case, if an employee does not provide proper notice, you are to let the employee know of that failure and give an opportunity to provide proper documentation before denying the request for leave (§ 826.90(a)).
What does notice look like? The DOL notes that “Generally, it will be reasonable” for (a) an employee’s spokesperson to give the notice, (b) the notice to be oral, and (c) the notice to provide sufficient information to determine if the leave is covered by the FFCRA. Finally, unless there are “unusual circumstances” (such as the COVID-19 crisis?), you can require employees to comply with your usual and customary notice and procedures for requesting leave.
What Documentation Can You Require? (§ 826.100)
The DOL answers definitively what documentation you can require of employees who request EPSL or EFMLA. Specifically, an employee must provide a signed statement containing the following information prior to taking EPSL or EFMLA:
- Employee’s name;
- The date(s) for which leave is requested;
- The COVID-19 qualifying reason for leave; and
- A statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
You should request the information above when the employee makes a request for leave under FFCRA, however, you should not deny the employee FFCRA leave if you do not receive all the information prior to the time the employee needs leave. Additionally, an employee must also provide supporting documentation depending on the COVID-19 qualifying reason for leave as follows:
- If the employee is requesting leave for reasons (1) or (4) (i.e., is subject to or is needed to care for someone subject to a quarantine or isolation order), the employee must provide the name of the government entity that issued the quarantine or isolation order.
- If the employee is requesting leave for reasons (2) or (4) (i.e., has been advised by or is needed to care for someone who has been advised by a healthcare provider to self-quarantine), the employee must provide the name of the healthcare provider.
- If the employee is requesting leave for reason (5) (i.e., usual child care is unavailable because of COVID-19), the employee must provide (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.
The DOL continues to refer you to IRS guidance on this issue as employers who intend to claim the tax credits must request from employees and retain sufficient materials to support the tax credits. You do not have to provide FFCRA leave to employees who refuse to provide documentation to support the request for paid leave (§ 826.100(f)), but you should give employees more than one chance to provide it.
What about Healthcare Providers and Emergency Responders?
Employers of healthcare providers and emergency responders can choose to exclude those employees from EPSL and EFMLA. So, who is a “healthcare provider” or an “emergency responder”?
The regulations define a healthcare provider very broadly as:
“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 similar institution.” (§ 826.30(c)(1))
In addition, the definition of healthcare provider includes any individual employed by a business that contracts with any of the above listed healthcare facilities to provide services or to maintain the operation of the facility, if that individual’s services support the facility’s operation. Finally, anyone employed by a company that provides medical services, produces medical products, or is otherwise involved in making COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments are included as healthcare providers.
Emergency responders are defined as:
“anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19.” (§ 826.30(c)(2))
This includes but is not limited to the military or the National Guard, law enforcement, correctional officers, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers, and public works personnel.
Applying the exemption appears to be up to the employer. If one of your healthcare providers or emergency responders has COVID-19 or has someone in their household who has it, you may want to go ahead and grant them the leave.
Wait — There’s More to Come!
We simply could not fit everything into one blog. In the next day or two, we will address things such as:
- How to determine how much leave an employee can take
- Figuring out an employee’s regular rate
- How much you must pay an employee for EPSL or EFMLA
- Whether employees can take PTO on top of FFCRA leave
- Whether intermittent leave is available
- Continuing an employee’s benefits while on leave
- Multi-employer plans
- What the FFCRA prohibits and how you can get in trouble
- Whatever else we think you might need to know
That’s a pretty long list so stay tuned.