Employers with fewer than 500 employees have had to navigate the federal Families First Coronavirus Response Act, (FFCRA) and its Emergency Paid Sick Leave and Expanded FMLA Leave requirements using evolving guidance from the Department of Labor (DOL). DOL’s FFCRA Regulations (the “Rule”), were promulgated on April 1, corrected on April 10, and address many employer questions.
This alert sets out the highlights of DOL’s Rule. Employers should also be aware that, prior to issuing the Rule, DOL posted, updated, and then revised its Frequently Asked Questions publication (“FAQs”). These FAQs are meant to provide assistance to employers and employees regarding their responsibilities and rights under the FFCRA. They are ever-expanding and subject to change without notice. Employers with questions on FFCRA should always check the FAQs to see if DOL has provided or updated its guidance.
The Rule reaffirms there is no entitlement to leave—either Emergency Paid Sick Leave or Expanded FMLA Leave—if the employer has no work for the employee. This is true even the if lack of work is due to COVID-19 related reasons. The Rule also confirms that an employee may not take Emergency Paid Sick Leave to self-quarantine without seeking medical advice.
The Rule also makes clear that DOL encourages telework arrangements in lieu of leave. For example, DOL stated in the preamble to the Rule that where telework is available, an employee seeking paid time off (due to a quarantine order, advice of a healthcare provider to self-quarantine, or while experiencing symptoms of COVID-19 and seeking a medical diagnosis) must have “extenuating circumstances” to be entitled to Emergency Paid Sick Leave. Under the DOL’s Rule “extenuating circumstances” might include an instance such as a power outage in the case of an employee working at home due to a public health order, or serious COVID-19 symptoms in the case of an employee with symptoms of COVID-19 and seeking medical diagnosis.
DOL’s Rule confirms that employers are not required to offer intermittent leave. Intermittent leave is available only if the employer and employee agree. Assuming the employer and employee agree on intermittent leave, no written agreement is required; but the arrangement must be documented. However, where the employee reports to the worksite (versus telecommuting), intermittent leave is only allowed where the reason for leave is to care for a son or daughter due to school or place of care closure, or caregiver unavailability. This limitation on availability of intermittent leave is designed to limit the potential spread of the virus.
The DOL has also made clear that intermittent leave arrangements under the FFCRA will not jeopardize exempt status under the FLSA.
Departing from DOL’s initial FAQs, the Rule (and revised FAQs) now state that employers may require employees to use employer-provided paid leave concurrently with Expanded FMLA Leave after the first two weeks. This is likely to include leave such as vacation and personal days, but not likely to include sick leave. The DOL’s current FAQ state that employees may choose to take the first two weeks of Expanded FMLA Leave unpaid or as Emergency Paid Sick Leave.
Notably, as of the date of this publication, the DOL’s FAQ still state that an employer may not require employer-provided paid leave to be used prior to taking Emergency Paid Sick Leave or concurrently with Emergency Paid Sick Leave.
The DOL’s Rule clarifies that employers need not provide a FMLA Notice of Eligibility, Rights and Responsibilities or Written Designation of Expanded FMLA leave. Employers who are FMLA covered may choose to apply existing FMLA practices for Expanded FMLA Leave requests.
FMLA covered employers (those with 50 or more employees) will need to understand how FMLA leave for eligible employees works with Expanded FMLA Leave. The Rule clarifies that for FMLA eligible employees, prior FMLA leave used in the leave year will count against the employee’s Expanded FMLA Leave entitlement. For example, a FMLA eligible employee who has already used six weeks for FMLA leave for his or her own serious health condition will have six weeks of Expanded FMLA Leave left to use in the FMLA leave year. Likewise, Expanded FMLA Leave will count against the employee’s FMLA entitlement, so an employee who takes twelve weeks of Expanded FMLA Leave in the leave year will not have any FMLA leave left to use in that leave year.
The Rule also clarifies that Expanded FMLA Leave is twelve weeks in the April 1 through December 31, 2020 time period, even if the employee starts a new FMLA leave year. For example, if the leave year is July 1, 2020, an employee who takes seven weeks of Expanded FMLA Leave before that date may take 5 weeks of Expanded FMLA leave between July 1 and December 31, 2020.
The Rule also confirms that “key employee” provisions of FMLA apply to Expanded FMLA Leave.
The DOL’s Rule gives employers with fewer than 50 employees some objective criteria under which an employer may be exempt from the requirement to provide Emergency Paid Sick Leave and Expanded FMLA Leave when providing leave will jeopardize the business. However, it is important to remember that the exemption is not automatic.
An authorized officer of the business must determine that:
To elect this small business exemption, the employer must document that the determination above has been made. The DOL has advised that employers should not send such documentation to the Department, but rather retain the records in its files.
It is not clear to what extent DOL will question these determinations and employers are encouraged to consult counsel before denying leave to employees based on claimed exemption. In any event, employers are still required to post the required FFCRA notice.
The DOL Rule instructs employers to keep all FFCRA records for four years.
Employees can file complaints about Emergency Paid Sick Leave or Expanded FMLA Leave with the Wage and Hour Division of DOL. As previously reported, failure to provide paid sick leave is enforceable as an FLSA Minimum Wage violation. DOL’s Rule confirms that existing FMLA liability for interference and discrimination is extended to Expanded FMLA Leave. However, an employee cannot file a lawsuit against an employer who is not subject to FMLA in the absence of the FFCRA.
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The DOL’s Rule provides much needed guidance for employers to administer FFCRA leaves. Additional questions will no doubt arise in specific situations. DOL’s FAQ are another resource for employers with questions about FFCRA, and employers should keep in mind that those questions are updated without notice. Employers should also keep in mind FMLA, as well as state and local laws, still apply and may impose additional or different requirements relating to leave.
Employers are encouraged to reach out to their RJO attorney and/or any RJO labor and employment attorney to discuss any questions or concerns related to these regulations or other COVID-19 related issues. We are here to help.