The Department of Labor (“DOL”) issued temporary regulations interpreting the Families First Coronavirus Relief Act (“FFCRA”) April 1; they are also effective as of April 1, 2020. The regulations are available here. These regulations are tremendously important in providing employers with something more to rely on in making important decisions regarding providing FFCRA leave to employees.
The regulations are 124 pages in length, but the first 82 pages are preamble and discussion about the regulations themselves. This discussion should not be skipped as there are some important interpretation points made by the DOL. In particular, the DOL states more than once that it is making an interpretive regulation because it wanted to avoid confusion or because it believed Congress meant something slightly different from what the text of the FFCRA provisions actually said. A good example of this is that the DOL is making definitions largely the same for both the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). Another good example is where the DOL states that the period for EFMLEA leave is two weeks, not ten days as stated in the statute.
In addition, the DOL wants employers to provide flexible working arrangements to its employees, and thus states, “[a]s a result, the Department has determined that an employer allowing such flexibility during the COVID-19 pandemic shall not be required to count as hours worked all time between the first and last principal activity performed by an employee teleworking for COVID-19 related reasons as hours worked.” In other words, unlike the typical rule for paying employees under the Fair Labor Standards Act where an employee must generally be paid for all time between the beginning and end of working, these regulations clarify that the employee need only be paid for the actual time worked. This provides maximum flexibility for both employers and employees, and allows an employer some breathing room when it comes to hourly workers who are performing telework.
Due to their length, it is not possible to discuss each provision. However, here is a list of important items and clarifications to consider as you are making leave decisions under the FFCRA.
- One question employers faced was what qualified as a federal, state, or local “quarantine or isolation order.” The regulations define that phrase broadly to include “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order.” The definition also includes federal, state, or local orders which advise “categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.” This expansive definition is significant because, under the EPSLA, those employees unable to work because of such an order receive their full pay for 80 hours (2 weeks according to the regulations) up to the statutory cap.
- Fear of COVID-19 is not a sufficient reason to obtain paid leave under the EPSLA. However, if an employee is subject to a stay at home or shelter in place order (like so many are), that is sufficient under the definition of “Subject to a Quarantine or Isolation Order” to obtain EPSLA paid leave if the employee cannot telework. EPSLA leave is available to employees who could work but for the stay at home or shelter in place order, but not to those whose work sites have been closed.
- With respect to employees seeking EPSLA leave because they have COVID-19 symptoms and are seeking a diagnosis, paid leave is only payable if the employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for or attending an appointment for a COVID-19 test.
- There are two items that have troubled many employers regarding employee eligibility and whether the employer is covered. An example from the regulations regarding employee eligibility for EFMLEA provides some guidance on this issue. In the example, an employee originally hired on January 15, 2020, but laid off on March 14, 2020, would be eligible immediately for leave under the EFMLEA and EPSLA if the employer re-hired the employee after April 1 but before December 31, 2020. An employer would be covered if it, between April 1 and December 31, 2020, had less than 500 employees (i.e., let go enough employees to fall under the 500 person test). Alternatively, if an employer hires employees such that the employer had more than 500 employees, the employer would no longer be covered.
- The regulations make clear that EPSLA and EFMLEA may not be taken intermittently unless the employer agrees to it.
- Employers do not have to respond to EFMLEA requests with a notice of eligibility, rights and responsibilities or other written designations letting the employees know that the leave counts against their FMLA leave allowances. An employer may follow its policies and practices regarding this, but again does not have to do so.
- Job restoration requirements under the EFMLEA do not apply to employees who have fewer than 25 employees and four stated conditions are met.
These are just a few of the many, many provisions of the regulations. Good news for small employers, however, inasmuch as the DOL says you will need to spend only one hour understanding your obligations under the regulations! We look forward to your comments on how long it took you to read and understand these 124 pages.
We hope that each of you are staying safe during this difficult time, and as always, we are here to help you as you need it.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these and other issues. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements