Update: Families First Coronavirus Response Act Regulations Filed

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On April 2, the Secretary of Labor filed temporary regulations for the implementation of the Families First Coronavirus Response Act (FFCRA). Signed into law on March 18, FFCRA creates two new leave opportunities in response to the COVID-19 pandemic: the Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFML).

For this blog entry, we thought we would use the regulations as an opportunity to answer some questions that clients have expressed over the last few days.  As a reminder, FFCRA went into effect on April 1 and applies to all private employers with less than 500 employees, but employers with less than 50 employees will be eligible for exemption from EFML leave under certain circumstances.  Please refer to our prior blog posts or reach out to an attorney in the Helsell Fetterman Employment Group for further information regarding the applicability of FFCRA to your organization and interpretation of its provisions.

Does a “stay-at-home” or “shelter-in-place” order qualify as a “quarantine or isolation order” for purposes of EPSL?

Yes. The regulations explain that quarantine or isolation orders include a broad range of governmental orders, including orders that advise, recommend, or direct citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.

Does that mean that all employees of an employer subject to a stay-at-home or shelter-in-place order are automatically eligible for EPSL?

No.  In determining whether an employee is eligible for EPSL because they are unable to work due to one of the stated conditions, the cause must be the reason why the employee is unable to work. So, for example, if the employer has ceased operations or is itself closed due to a quarantine, isolation, or stay-at-home order, then the employee is not able to work and would not be eligible.  Similarly, an employee who has been advised by a health care provider to self-quarantine but is nonetheless able to telework, is not eligible.

What are the rules for telework?

Telework under the regulations is defined as “no less work than if it were performed at an employer’s worksite.” Further guidance explains that an employee subject to a quarantine or isolation order is able to telework, and therefore may not take paid sick leave, if (a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work. Examples of “extenuating circumstances” include a power outage and while an employee is awaiting a test result for COVID-19, regardless of severity of symptoms. Under the regulations, an employee may agree with an employer to perform telework on irregular working hours or at a different schedule then the employee would normally work.  An employee is considered able to telework even if they are required to use their own computer.

What if an employee has a child whose school, place of care, or childcare provider is unavailable due to COVID-19 and they are unable to work, are they automatically eligible for EPSL or EFML?

No. In order to be eligible for childcare leave under EPSL or EFML, regardless of whether they are able to work or not, the employee must not have another suitable individual— such as a co-parent, co-guardian, or usual child care provider— available to provide the child’s needs. Thus, if there is another parent in the household, the leave would not be available.

Is the maximum leave an employee can take for EFML 10 or 12 weeks of paid leave?

EFML allows an employee who has been employed for 30 days to take 12 weeks of leave if they have a child whose school, place of care, or paid childcare is unavailable due to COVID-19.  While the first 10 days or 2 weeks are unpaid (unless substituted with EPSL or other paid leave), thereafter the employee is eligible for 10 weeks of leave paid at 2/3 their regular rate of pay. This means that there are scenarios in which an eligible employee could take 14 weeks total leave, with 2 weeks unpaid.  For example, an employee who is particularly vulnerable to COVID-19 and is advised by a health care provider to self-quarantine could take EPSL for 2 weeks paid at 100% of their regular rate of pay.  After they return to work, their child’s childcare may become unavailable, at which point they would be eligible for 12 weeks of EFML, with the first 10 days unpaid.  If the employee still has PTO or Vacation leave, they may use that for the first 10 days to receive pay.

Does EPSL or EFML run concurrently with FMLA?

  • EPSL—Employee determines what leave to take and when; Employer cannot require employee to take other paid leave prior to taking EPSL.
  • EFML—Employee may be required to use other available paid leave (e.g. vacation and pto) concurrently.

Documentation: Depending on the basis for the leave requested, employees will need to provide certain statements, along with the name of the ordering government entity or health care provider, or information regarding their child and unavailable childcare.

Recordkeeping: all documentation is to be retained for 4 years, whether approved or denied.

Consequences of Non-Compliance: an employer who does not accurately determine eligibility or who fails to save required documentation will be unable to claim the tax credits to offset the cost for wages paid.

Follow this link for access to the mandatory notice, as provided by the DOL: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

If you are inclined to review the 125-page document yourself, feel free to review here: https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act


About the Authors

Onik'a Gilliam-Cathcart

Ms. Gilliam-Cathcart’s practice primarily focuses on conducting investigations concerning claims of discrimination and retaliation, and counseling public and private organizations on a wide range of civil matters with an emphasis on employment-based claims. She also regularly trains and presents to employers on civil rights compliance and employment best practices.

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