To help our clients navigate the coronavirus (COVID-19) crisis, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of today, April 7, 2020. Many situations are so fact specific and nuanced that this Legal Alert only addresses some of the more pressing ongoing issues. The discussion below is therefore general and does not address all considerations and specific analyses that may need to be undertaken prior to taking action.
Recently, the Secretary of Labor (“Secretary”) issued temporary regulations on the Families First Coronavirus Response Act (“FFCRA”). We previously advised our clients of the requirements of the FFCRA in a Legal Alert shortly after its enactment, which can be found here. In addition, we provided Legal Alerts on prior guidance issued by the Department of Labor (“DOL”) regarding the FFCRA which can be found here and here.
Under the FFCRA, employees are entitled to paid leave, without charge to accruals, due to certain COVID-19 related absences, such as being under quarantine or caring for a family member under quarantine, seeking a diagnosis of COVID-19 after experiencing symptoms of the virus or caring for a family member who has experienced such symptoms and is seeking diagnosis, and/or caring for a child whose school or place of care is closed due to COVID-19 precautions. Please see our prior Legal Alerts for additional information on the FFCRA.
The temporary regulations (“regulations”) issued by the Secretary provides important clarifications regarding the FFCRA and also changes some of the prior guidance issued by the DOL. Unfortunately, there is also an inconsistency in the regulations which will likely cause significant confusion for employers. The highlights of the regulations, as well as the referenced inconsistency, are set forth below:
Eligibility Under the Emergency Paid Sick Leave Act
Under the Emergency Paid Sick Leave Act (“EPSLA”) of the FFCRA, employees are eligible for paid sick leave if they: (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID–19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) are experiencing symptoms of COVID-19 and are seeking a medical diagnosis; (4) are caring for an individual who is subject to an order of quarantine or has been advised to quarantine by a health care provider; (5) are caring for their child because of school closures or child care unavailability due to COVID-19 precautions; or (6) are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services. Full-time employees are eligible for eighty (80) hours of paid sick leave and part-time employees are entitled to a number of paid sick leave hours equal to what the employee works, on average, over a two (2) week period. The regulations clarify that employees are “full-time” if they work at least forty (40) hours per week. All other employees are considered “part-time” for the purposes of the EPSLA.
The regulations also clarify the circumstances under which employees who have “been advised by a health care provider to self-quarantine due to concerns related to COVID-19” are eligible for leave under the EPSLA. Specifically, the regulations make clear that employees who have been advised by a health care provider to self quarantine because they have COVID-19, may have COVID-19 or, most significantly, are particularly vulnerable to COVID-19, are all eligible for paid sick leave under the EPSLA.
The regulations further clarify when an employee is considered to be “experiencing symptoms of COVID-19 and seeking a medical diagnosis.” The regulations define COVID-19 symptoms as: fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention (CDC). The regulations also provide that paid sick leave for this reason is limited to the time that employees are unable to work because they are taking affirmative steps to obtain a medical diagnosis (including waiting for test results if unable to telework), and that employees may not take paid sick leave to self-quarantine without seeking a medical diagnosis.
The regulations also provide guidance as to the necessary relationship that must exist in order for employees to be eligible for leave for the purpose of caring for individuals who are under quarantine (whether ordered or advised by a health care provider). Specifically, the regulations define eligible “individuals” as immediate family members, persons who regularly reside in the employees’ homes, or similar persons with whom the employees have relationships that create an expectation that the employees would care for them if they were quarantined or self-quarantined. Accordingly, the categories of eligible individuals under the regulations are quite broad and could arguably include romantic partners and even close friends.
The regulations do not provide any additional guidance as to when an employee is considered to be “experiencing any other substantially similar condition specified by the Secretary of Health and Human Services,” other than to state that the “substantially similar condition may be defined at any point during the Effective Period.”
Significantly, the regulations provide that an employee’s maximum leave entitlement under the EPSLA is eighty (80) hours per person, not per job. In other words, an employee who changes jobs during the effective period of the FFCRA (April 1 to December 31, 2020), is entitled to a total of eighty (80) hours of leave under the EPSLA among all his or her employers. As such, employers who have employees requesting leave under the EPSLA who were hired during its effective period should take steps to determine whether such employees have previously utilized any such leave with their prior employers.
Eligibility for Leave Due to School Closures or the Unavailability of Child Care
Under both the EPSLA and the Emergency Family Medical Leave Expansion Act (“FMLEA”), employees are eligible for leave to care for their children because of school closures or the unavailability of child care due to COVID-19. However, the regulations clarify that if another suitable individual— such as a co-parent, co-guardian, or the usual child care provider—is available to provide child care, the employee will not be eligible for leave.
The regulations also defines “child care provider” as a provider who receives compensation for providing child care services on a regular basis. This includes a center-based child care provider, a group home child care provider, a family child care provider, or any other provider of child care services for compensation that is appropriately licensed, regulated and/or registered. However, the regulations further provide that the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the employee’s child.
Amount of Leave Available Under the FMLEA
The regulations confirm that leave under the FMLEA is part of, and not in addition to, the twelve (12) weeks of leave employees are entitled to under the FMLA. As such, the amount of leave an employee is entitled to under the FMLEA will depend on how much leave the employee has already utilized under the FMLA. For example, an employee who has already utilized five (5) weeks of leave under the FMLA will only be eligible for seven (7) weeks of leave under the FMLEA.
The regulations also provide that employees are entitled to a maximum of twelve (12) weeks of leave under the FMLEA during the effective period of the FFCRA (April 1 to December 31, 2020), even if that period spans two (2) FMLA leave years. For example, if an employer has established a twelve (12) month FMLA period running from July to June, and an employee takes seven (7) weeks of leave under the FMLEA in May and June, 2020, that employee may only take up to five (5) more weeks of leave under the FMLEA between July 1 and December 31, 2020. However, said employee would still maintain seven (7) weeks of leave under the FMLA, which he or she will be eligible to use for any other reasons under the FMLA.
Using Accrued Leave Concurrently With Leave Under the FMLEA
The regulations provide inconsistent guidance regarding the ability to use accrued leave provided by an employer, such as vacation or personal leave, concurrently with leave under the FMLEA. Under the FMLEA, the first two (2) weeks of leave are unpaid and the remaining ten (10) weeks are paid at two thirds (2/3) of the employee’s regular rate, capped at $200 per day and $2,000 in the aggregate. With respect to the ten (10) weeks of paid leave under the FMLEA, Section 826.70(f) of the regulations state that “[be]cause this period of Expanded Family and Medical Leave is not unpaid, the FMLA provision for substitution of the Employee’s accrued paid leave is inapplicable, and neither the Eligible Employee nor the Employer may require the substitution of paid leave.” Rather, Section 826.70(f) provides that an employer and employee may only use, upon mutual agreement, employer provided paid leave accruals to “supplement” the paid leave provided under the FMLEA so that the employee receives the full amount of his or her normal pay (i.e., allow the employee to use one third (1/3) of an accrued leave day). However, Section 826.160(c) of the regulations provides just he opposite, stating that “an Eligible Employee may elect to use, or an Employer may require that an Eligible Employee use, provided or accrued leave available to the Eligible Employee,” such as vacation or personal leave or paid time off, “concurrently with Expanded Family and Medical Leave.”
The DOL’s Questions and Answers on the FFCRA also states that employees may elect, or employers may require, accrued leave to run concurrently with the FMLEA (Q&A#31). Specifically, the Questions and Answers state that after the first two (2) weeks of leave under the FMLEA, employees may elect, or employers may require, accrued leave to run concurrently with leave under the FMLEA. Notably, this information was not in the original Questions and Answers issued by the DOL, which have apparently been updated based upon the regulations. The updated Questions and Answers can be found here.
Based upon the updated Questions and Answers, it appears that the regulations’ prohibition on running accrued leave and leave under the FMLEA concurrently was intended to apply only to the first two (2) weeks of FMLEA, if the employee is already utilizing paid leave under the EPSLA during that time. As stated above, while the first two (2) weeks of FMLEA are unpaid, an employee is also entitled to use their paid leave under the EPSLA during that time. However, according to the DOL’s updated Questions and Answers, an employee may not utilize employer paid leave at the same time as leave under the EPSLA (Q&A#32). Rather, the employer and employee can agree to “supplement” the paid leave under the EPSLA so that the employee receives the full amount of his or her normal pay. The Questions and Answers go on to provide that after said two (2) weeks of leave, the employee may elect, or the employer may require, the use of paid leave accruals concurrently for the remainder of the leave under the FMLEA.
While the Questions and Answers appear to provide some clarity on the issue, the inconsistency in the regulations remains. Moreover, the regulations, not the Questions and Answers, are the controlling authority. As such, we urge you to contact our office prior to making any decisions regarding allowing, or requiring, employees to use accrued leave time concurrently with leave under the FMLEA.
Notably, the regulations relax the documentation requirements established by the previous DOL guidance for employees to substantiate their entitlement to leave under both the EPSLA and the FMLEA. Specifically, the prior guidance stated that in order to substantiate an entitlement to leave due to quarantine under the EPSLA, employees should provide their employers with a copy of the Federal, State or local quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising to self-quarantine due to concerns related to COVID-19. For leave due to the lack of child care caused by COVID-19 under either the EPSLA or the FMLEA, the prior guidance stated that employees should provide their employers with a copy of the notice of school or child care provider closure, which could include notices published on a website, published in newspapers or send via email.
Pursuant to the regulations, an employee can now demonstrate entitlement to leave under the EPSLA by providing a signed statement to his or her employer, containing the following information: (1) the employee’s name; (2) the dates for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. In addition, depending on the employee’s reason for leave under the EPSLA, the employee must also provide the name of the government entity that issued the quarantine or isolation order to which the employee, or the individual the employee is caring for, is subject, or the name of the health care provider who advised the employee, or the individual the employee is caring for, to self-quarantine for COVID-19 related reasons.
Likewise, an employee requesting to take leave under the EPSLA or the FMLEA to care for his or her child must now provide the following information to his or her employer: (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 regulations represent a stark departure from the DOL’s prior guidance, which required employees to provide official documentation from third parties, as opposed to a simple statement from the employees representing that they are eligible for leave. The DOL has revised its guidance documents in light of the regulations.
The regulations also require employers to maintain all documentation related to requests for leave under the EPSLA and FMLEA for a period of four (4) years, regardless of whether the request was approved or denied.
Employees Who May be Exempted from the EPSLA and FMLEA
The FFCRA provides that employers may exclude health care providers and emergency responders from eligibility under the EPSLA and FMLEA. The regulations broadly define the class of employees who are considered health care providers and emergency responders.
The regulations define a health care provider as “anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary 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 any similar institution, Employer, or entity.”
The definition of health care provider also includes:
- Any individual employed by an entity that contracts with any of the above institutions to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility; and
- Any individual employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
The regulations define an emergency responder as anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of patients, or others needed for the response to COVID-19. This includes, but is not limited to, military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as any individuals who work for facilities employing these individuals and whose work is necessary to maintain the operation of the facility.
In addition to the above, the definitions of health care provider and emergency responder may also include any individuals whom the highest official of a State or territory, including the District of Columbia, determines are health care providers or emergency responders necessary for the response to COVID-19.
Small Business Exemption
The regulations provide that employers with 49 or fewer employees are exempt from providing leave due to school closures or the unavailability of child care when allowing such leave would jeopardize the viability of the business. An employer is eligible for the exemption if any of the following apply, as determined by an authorized officer of the business:
- Providing the leave would result in expenses and financial obligations exceeding available business revenues and cause the business to cease operating at minimal capacity;
- The absence of the employee or employees requesting leave would entail substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
- There are not sufficient workers who are able, willing and qualified who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and these labor or services are needed for the business to operate at a minimal capacity.
Employers electing the exemption must document that an authorized officer made the determination. The DOL advises that employers retain those records in their files. Moreover, an employer electing the exemption must still display the mandatory poster issued by the DOL informing employees of the FFCRA’s requirements.
Prior Keane & Beane Covid-19 Legal Alerts
Keane & Beane, P.C. has prepared several Legal Alerts concerning the Federal and State response to COVID-19 and the impacts on employers and local governments. Our Legal Alerts are available here.
Consult Counsel Regarding Specific Questions
Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Public Sector Practice Group with questions regarding specific situations. We note that there are legislative developments in Congress and New York which impact each of these questions, which we are closely monitoring. Because of the frequent developments, you should consult counsel regarding specific questions. For questions on employment and labor issues contact William Kang or Lance H. Klein and on general municipal issues contact Nicholas M. Ward-Willis or Drew Victoria Gamils or any other attorney in our Public Law Sector Practice Group.
 The FMLA entitles eligible employees who work for covered employers to take twelve (12) weeks of leave in a defined twelve (12) month period for specified family and medical reasons. Employers may use any of the following methods to establish the twelve (12) month period: calendar year; any fixed twelve (12) month period; the twelve (12) month period measured forward from the first date an employee takes FMLA leave; or the twelve (12) month period measured backward from the date an employee uses any FMLA leave.
 The FFCRA actually states that the first ten (10) days of leave under the FMLEA are unpaid. However, in order to “ensure consistency” between the EPSLA and the FMLEA, the regulations provide that the unpaid period under the FMLEA is two (2) weeks, not ten (10) days.