The U.S. Department of Labor (“DOL”) continues to provide guidance regarding the Families First Coronavirus Response Act (“FFCRA”). On April 1, 2020, the DOL issued a temporary rule regarding the FFCRA, including the text which will become part of the Code of Federal Regulation (“CFR”). Assuming there are no changes to the temporary rule, it is scheduled to be published on April 6, 2020. See here. The CFR represents an agency’s official interpretation of a statute, which in this case is the DOL’s interpretation of the FFCRA.
Below are a few key takeaways from DOL’s 125-page document. As you know, this is a fluid situation, and we will endeavor to continue to provide updates as we learn more.
- The DOL’s temporary rule reverses guidance provided by the DOL in a previously issued Q&A as to the issue of whether Illinois’ Executive Order 2020-10 (the “Shelter-in-Place Order”) is a “quarantine or isolation order” for purposes of the FFCRA. The DOL’s Q&A issued a few days ago stated that if a worksite closed due to a “Federal, State, or local directive,” then the Employees would not qualify for benefits. Many commentators took this to mean that the Shelter-in-Place Order did not qualify. The new guidance, however, indicates that the Shelter-in-Place Order does qualify as a “quarantine or isolation order” under the FFCRA.
The DOL’s new guidance notes that the key question is whether or not the Employee would be able to work or telework but-for the stay-at-home order. An Employee is entitled to the unpaid sick leave benefits under the quarantine or isolation order only if, “but for” being subject to the order, he or she would be able to perform work that is otherwise allowed or permitted by his or her Employer, either at the Employee’s normal workplace or by telework.
Additionally, an Employee subject to a quarantine or isolation order may not take Emergency Paid Sick Leave under the FFCRA when his or her Employer does not have work for the Employee as a result of the order or other circumstances. In other words, an Employee who cannot work due to a lack of business, at a business otherwise unaffected by the stay-at-home order, would not qualify for benefits under the FFCRA. However, he or she would likely be entitled to unemployment benefits.
- There are a number of definitions which should be consulted when applying the FFCRA.
For example, the DOL has confirmed that the definition of “son or daughter” under the FFCRA is the same as under the FMLA. The definition includes children 18 years of age or older incapable of self-care because of a mental or physical disability.
Additionally, as the term “advised by a health care provider to self-quarantine” is used in the FFCRA, it means:
(i) A health care provider advises the Employee to self-quarantine based on a belief that:
(A) the Employee has COVID-19;
(B) the Employee may have COVID-19; or
(C) the Employee is particularly vulnerable to COVID-19; and
(ii) Following the advice of a health care provider to self-quarantine prevents the Employee from being able to work either at the Employee’s normal workplace or by Telework.
- The DOL defines “Telework” as meaning:
the Employer permits or allows an Employee to perform while the Employee is at home or at a location other than the Employee’s normal workplace. An Employee is able to Telework if: His or her Employer has work for the Employee; the Employer permits the Employee to work from the Employee’s location; and there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the Employee from performing that work. Telework may be performed during normal hours or at other times agreed by the Employer and Employee. Telework is work for which wages must be paid as required by applicable law and is not compensated as paid leave under the [Emergency Paid Sick Leave Act] or the Expanded Family Medical Leave Act. Employees who are teleworking for COVID-19 related reasons must be compensated for all hours actually worked and which the Employer knew or should have known were worked by the Employee. However, the provisions of § 790.6 shall not apply to Employees while they are teleworking for COVID-19 related reasons.
- The DOL’s definition of “workday” is relaxed related to Employees who Telework to allow for flexible schedules.
- If an Employee is Teleworking, he or she may be entitled to benefits if he or she is unable to work due to “extenuating circumstances.” The example provided by the DOL is a power outage that prevents an Employee from Teleworking.
- Regarding the small business hardship exemption, which was discussed in a previous post, the DOL states that a business with fewer than 50 Employees electing the exemption must document the determination and retain the records in its file.
- Regarding Employee’s notice for requesting leave, an Employer may require an Employee to follow reasonable notice procedures. However, the Employer cannot require that leave be requested in advance, except for anticipated leave related to child care. Employees are encouraged to give notice as soon as practicable. If the Employee fails to give proper notice, an Employer should give the Employee notice of the failure and an opportunity to provide the required documentation. Notice may be oral or written and may be provided by the Employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the Employee is unable to do so personally.
- The DOL also issued guidance on documentation an Employer may require. To take Emergency Paid Sick Leave or Expanded Family and Medical Leave, the Employee must provide:
(1) Employee’s name;
(2) Date(s) for which leave is requested;
(3) Qualifying reason for the leave; and
(4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.
Additionally, an Employee seeking to take Emergency Paid Sick Leave related to a quarantine order or isolation order must provide the name of the governmental entity issuing the order. Generally, to take Emergency Paid Sick Leave for health issues related to COVID-19, an Employee must provide the name of the health care provider.
For paid leave related to child care, the Employee must also provide:
(1) The name of the Son or Daughter being cared for;
(2) The name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and
(2) A representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Emergency Paid Sick Leave or Expanded Family and Medical Leave.
An Employer may also require an Employee requesting paid leave under the FFCRA to provide all documentation necessary for the Employer to receive the tax credits. An Employer is not required to provide the leave if materials sufficient to support the applicable tax credit have not been provided. See https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.
- Generally, an Employee taking paid leave under the FFCRA has a right to be restored to an equivalent position in accordance with the regulations relating to FMLA leave. See 29 CFR 825.214 and 215. However, there are some exceptions, including employment issues that would have affected the Employee regardless of leave (e.g., layoffs), as well as for key Employees. With some exceptions, the restoration requirement is also slightly relaxed for Employers with fewer than 25 Employees.
- The guidance also makes it clear that it is the Employee’s choice on which type of leave benefit he or she uses (e.g., FFCRA leave, vacation, PTO, or Employer provided sick leave).
The attorneys at Reno & Zahm LLP continue to monitor COVID-19 related statutes, rules, regulations and guidance, and we will endeavor to provide regular updates when warranted. Please contact us with any questions. We are here to help you make it through these challenging times.