On April 1, 2020, the U.S. Department of Labor’s Wage and Hour Division posted a Rule (to be final when published on 4/6/20) issuing regulations under the Families First Coronavirus Response Act (“FFCRA”). The regulations provide further clarity as to how the leave provisions of the Expanded Family and Medical Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) will be implemented. Key provisions include:
- Covered employers under EPSLA and EFMLEA: Includes both for-profit and non-profit entities who have fewer than 500 employees at the time an employee would take leave. (Sec. 826.40)
- Eligible employees under the EFMLEA: The EFMLEA applies to employees who have worked for the employer for at least 30 days as of the day before leave would begin. This includes employees laid off/terminated on or after March 1, 2020 but rehired on or before December 31, 2020, if they were on the employer’s payroll for at least 30 of the 60 calendar days prior to lay off/termination. (Sec. 826.10 and 826.30)
- Telework: Employees can “telework” if an employer has work for them, permits them to work off-site, and there are no COVID-19 related circumstances that prevent them from working. The employee must be paid for all hours actually worked. (Sec. 826.10) Note: An employee who is self-quarantining or is subject to a quarantine/isolation order is able to telework and therefore may not take EPSL, unless they are unable to work due to other COVID-19 related reasons. An employee who can telework while tending to family responsibilities may not take leave under the EPSLA or EFMLEA, absent other COVID-19 related reasons that prevent them from working.
- Full/part-time employees: Under the EPSLA, full-time employees are those normally scheduled to work at least 40 hours per week. Part-time employees are entitled to the number of hours they are normally scheduled to work over two workweeks. For full and part-time employees with variable schedules, EPSLA entitlement amount is calculated based upon average scheduled hours to work, including hours of leave, over the prior 6-month period or the duration of employment, if employed less than 6 months. (Sec. 826.21)
- For any of the six qualifying reasons for EPSLA leave, the overarching question is whether an employee would be able to work or telework “but for” the qualifying reason. If an employer does not have any work for an employee, he/she would be unable to work regardless of any EPSLA qualifying reason. Therefore, the employee is not eligible for EPSLA leave. (Sec. 826.20)
- An employee may take EPSLA leave to make, wait for, or attend an appointment for a COVID-19 test. An employee who cannot telework may take EPSLA leave while waiting for results. An employee may not take EPSLA leave to self-quarantine without seeking a medical diagnosis. (Sec. 826.20)
- An employee who seeks EPSLA leave to care for another person who is under quarantine must have a genuine need to care for the family member, roommate or similar person. (Sec. 826.20)
- An employee who seeks EPSLA leave to care for a child whose school or daycare is closed is only entitled to leave if the employee needs to, and actually is, caring for a child. The employee may not take leave if there is another suitable person who can provide childcare. (Sec. 826.20)
- An employee may choose, or an employer may require the employee to use, any accrued paid leave that would be available under the employer’s current policies concurrently with EFMLEA leave. This will allow employees to receive full pay during an EFMLEA leave and allow employers to minimize longer employee absences. (Sec. 826.23)Note : The employer’s eligibility for EFMLEA tax credits will still be limited to the cap of $200 per day or $10,000 total.
- EFMLEA does not impose the same employer “specific notice” obligations as the FMLA.
- The “key employee” provisions under the FMLA also apply to restoration rights following leave taken under the EFMLEA. (Sec. 826.130)
- An employee may take intermittent leave under the EPSLA or EFMLEA only if the employee and employer agree. Although it need not be in writing, there must be a clear and mutual understanding about the leave and increments in which it may be taken. An employee’s ability to take intermittent leave under the EPSLA or EFMLEA while working at a worksite is depends on the reason for the leave, no doubt guided by the public policy of minimizing COVID exposure for other employees. For an employee who is teleworking, intermittent leave may be taken only during those times when the employee is unable to telework because of a COVID-19 related reason. (Sec. 826.50)
- An employee’s use of intermittent leave under the EPSLA or the EFMLEA will not undermine the employee’s salary basis for purposes of retaining an exempt status under the FLSA.
Small Employer Exemption:
A small employer (i.e. fewer than 50 employees) seeking exemption from EPSLA or EFMLEA paid leave requirements relating to school or daycare closures may deny leave to only those individual employees whose absence would cause the employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity.) This determination must be documented by an officer of the business. (Sec. 826.40)
Health Insurance Coverage:
- An employee who takes leave under the EPSLA and/or the EFMLEA is entitled to continued coverage under the employer’s group health plan on the same terms as if the employee did not take leave. (Sec. 826.110)
Employee Notice Requirements:
- An employer may require employees provide reasonable notice of a need for leave. Employees are required to provide certain documentation in support of leave under the EPSLA or EFMLEA. (Sec. 826.90)
- Documentation sufficient to support a leave must include a statement including: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for the leave; and (4) a statement that the employee is unable to work or telework because of the qualifying reason. The employee is required to provide additional, specific information based upon the cited COVID-19 qualifying reason for the leave. (Sec. 826.100)
- An employer must retain all documentation provided by employees (including documentation of employee oral statements) to support requests for EPSLA and EFMLEA leaves for 4 years, regardless of whether leave is granted or denied.
- A small employer who denies an employee’s request for paid leave under the EPSLA or EFMLEA must document its authorized officer’s determination and retain supporting documentation for 4 years.
- An employer must retain specific documentation for 4 years in order to claim tax credits for paid leaves under the EPSLA and EFMLEA. (Sec. 826.140)
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