25

September, 2020

DOL Revises Regulations to the Families First Coronavirus Response Act

By Alexandra Lapes and Tracey Levy

Effective as of September 16, 2020, the United States Department of Labor (“DOL”) issued revised regulations to its temporary rule issued on April 1, 2020, implementing provisions of the Families First Coronavirus Response Act’s (“FFCRA”) paid sick leave and paid family leave mandates, to clarify workers’ rights and employers’ responsibilities, after a United States District Court for the Southern District of New York (“District Court”) struck down several portions of the temporary rule as invalid on August 3, 2020.

Specifically, the District Court ruled four parts of the DOL’s temporary rule regarding the FFCRA paid leave provisions were invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work available from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the expanded definition of “health care provider” and whom an employer may exclude from being eligible for FFCRA leave; and (4) that employees who take FFCRA leave must provide their employers with certain documentation before taking leave. New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).

As previously reported in our Law Blog, the Emergency Paid Sick Leave Act (“EPSLA”) grants paid sick leave to employees who are unable to work or telework due to a need for leave because of any of six COVID-19-related criteria. Similarly, the Emergency Family and Medical Leave Act (“EFMLEA”) applies to employees unable to work or telework due to a need for leave to care for a child due to a public health emergency.

The DOL’s revisions reaffirm and provide further explanation of the following:

• Employees may take FFCRA leave only if work would otherwise be available to them.
The DOL’s April 1, 2020 rule stated an employee was entitled to FFCRA leave only if the qualifying reason was the actual reason (or the but-for cause) why the employee was unable to work, and therefore did not apply if an employee was furloughed or was unable to work because an office was closed. The District Court held the work-availability requirement was invalid because the DOL had only explicitly applied it to three of the six qualifying reasons for FFCRA leave.

In response, the DOL has reiterated that an employee may take sick leave or expanded family and medical leave only to the extent that a qualifying reason is the sole (“but-for”) reason the employee is not working. The DOL extended that standard to all qualifying reasons for FFCRA leave. The DOL explained that removing the work-availability requirement would not serve the purpose of the FFCRA paid leave provisions, because if there is no work to perform, there would be no need to discourage potentially infected employees from coming to work. However, the DOL has made clear that there must be a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform.

• Where intermittent FFCRA leave is permitted by the DOL’s regulations, an employee must obtain employer approval to take FFCRA leave intermittently.
The DOL also confirmed its original position that employer approval is needed to take intermittent FFCRA leave. The District Court had struck down the employer-approval requirement as not adequately explained, so the DOL responded by providing more of a rationale for this requirement.
Tackling anticipated confusion for employees who have children in school on a hybrid schedule, the DOL clarified that the employer-approval requirement does not apply to employees who take FFCRA leave to care for their children on remote learning days, provided the child is attending school on the days that the school is open to the child. For FFCRA purposes, the DOL has reasoned that, if the remote learning days are determined and directed by the school then each such day constitutes a separate qualifying event for FFCRA leave, and such absences are not deemed to be “intermittent”. Employer consent would still be required, though, if an employee’s child’s school is closed for multiple days, and the employee seeks to use FFCRA leave on only some of those days (an intermittent basis) while the school is closed.

Similarly, the DOL explained that an employee is not eligible for FFCRA leave if the employee elects remote schooling for the employee’s child when in-person attendance would otherwise be possible. However, if an employee’s child is under a quarantine order or has been advised by a health care provider to self-quarantine, then FFCRA leave would be available, and if the employee asks to use FFCRA leave on only select days that the child is quarantined at home, then employer approval would be required for the leave to be taken intermittently.

The DOL’s revisions also amend and clarify that:

• The definition of “healthcare provider” includes only employees who (1) meet the definition of that term under the FMLA regulations and (2) who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
Under the FFCRA, employers are allowed to exclude employees who are “healthcare providers” from FFCRA leave coverage, recognizing these employees’ presence at work is essential in preventing disruptions to the health care system’s capacity to respond to COVID-19. The District Court struck down the DOL’s original definition of “healthcare provider” as being overly broad because it excluded employees in medical services who were not directly providing patient care. The DOL accordingly adopted a narrower definition of the term in the revised regulations that focuses on whether the employee is providing services that are integrated with and necessary for patient care.

• Employees must provide required documentation supporting their need for FFCRA leave to their employer as soon as practicable.
Under the FFCRA, employees are required to provide notice to receive paid sick leave after the first workday of leave, or for expanded family and medical leave, as soon as practicable, when the necessity for such leave is foreseeable. In the temporary rule issued by the DOL, it required this documentation be submitted “prior to” taking FFCRA leave, which the District Court held was inconsistent with the statute’s notice requirements. The DOL amended the new regulations to clarify that notice be provided as soon as practicable, which may be at the same time an employee requests leave, but the DOL recognized that is not necessarily always the case.

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30

March, 2020

US DOL Issues Poster, Guidance – Answers Some Open Questions Regarding Emergency Paid Sick Leave

By Tracey I. Levy

The U.S. Department of Labor has issued a mandatory poster and updated its initial guidance to answer many more of employers’ questions with regard to the application of the Emergency Paid Sick Leave law, which takes effect April 1, 2020.  The poster must be posted in a conspicuous place on the employer’s premises or on a website for employee information, or emailed or direct mailed to all employees.

The DOL’s guidance includes the following key points, many of which we had referenced in our last HR Strategy article on the new federal and New York State emergency paid sick leave laws.

Exception for Small Businesses:

Employers with fewer than 50 employees can demonstrate that providing Emergency Paid Sick Leave or Emergency FMLEA will jeopardize the viability of their business as a going concern, and thereby claim an exemption from the laws’ requirements, if an authorized officer of the business determines that:

  • Providing the paid leave would cause the business’s expenses and financial obligations to exceed available revenues, such that the business would cease operating at a minimal capacity;
  • The absence of covered employees would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
  • The business lacks sufficient workers who are able, willing, qualified and available at the time and place needed to cover for the employee(s) requesting paid leave and the work the requesting employees would perform is needed for the small business to operate at minimal capacity.

It remains unclear what documentation an employer will need to maintain to meet this legal standard, so employers seeking the exemption may want to err on the side of saving any potentially relevant financial records, communications and notes of their deliberative process.

Counting the 500-Employee Threshold

The federal emergency paid leave laws apply only to employers with fewer than 500 employees.  Only individuals employed in the United States (including all 50 states, the District of Columbia, or any Territory or possession of the U.S.) are included in that number.  Multi-national entities with a relatively small U.S.-employee presence therefore are covered by the federal laws as to their U.S. employees, even if they have more than 500 employees globally.  Also, full-time and part-time employees count equally toward meeting that threshold, as do employees on leave, temporary employees (even if they are employed through a temp agency), and day laborers supplied by a temporary agency.  Only independent contractors are excluded from the headcount.

Documenting Leave is Requested for a Qualifying Reason

The DOL has referred employers to the Internal Revenue Service for forms, instructions and information on what documentation is required to support an employee’s request for leave and what documentation must be retained to support the employer’s claim of a tax credit.  The IRS has not yet issued that guidance, but employers can check https://www.irs.gov/coronavirus for updates.

Generosity is Permissible, but Not Reimbursable

For higher-earning employees, employers may choose to pay them above the statutory cap for leave taken as Emergency Paid Sick Leave or Emergency FMLEA.  However, employers cannot claim a tax credit for payments in excess of the statutory cap.

Employers may also permit (but may not require) employees to apply their regular accrued, paid leave time under the employer’s policies to supplement the amount received for Emergency Paid Sick Leave or Emergency FMLEA.  For example, an employee who is receiving two-thirds of salary as Emergency Paid Sick Leave may request to use accrued, paid leave in one-third of a day increments to augment the federal law benefit.  In this situation, as well, the employer tax credit is limited to payments up to the statutory amounts.

Intermittent Leave May Be an Option

Employees must take Emergency Paid Sick Leave in full-day increments.  With that caveat, employers may permit an employee to use Emergency Paid Sick Leave and Emergency FMLEA on an intermittent basis (rather than in a single block of time) in select circumstances.  Intermittent leave may be authorized for an employee who is caring for a child whose school or child care center has been closed due to COVID-19 precautions, regardless of whether the employee is reporting to the workplace or working remotely.  If leave is being taken under any of the other five Emergency Paid Sick Leave categories, the guidelines provide that, unless the employee is working remotely, intermittent leave is not available.

Paid Leave is Not Required for Furloughed Employees or if the Workplace Has Been Closed

Employees are only eligible for paid leave if they are still working as of the date the leave is requested.  If the entire worksite has been closed or the requesting employee has been laid off, even temporarily, and the employee is therefore not doing any work for the employer, even remotely, then the employer is not required to provide any amount of paid COVID-19-related leave under the federal laws.  If an employer closes a worksite while an employee is already on covered paid leave, the employee must be paid for leave take only up to the date of closure.

Emergency FMLEA Counts as FMLA Time

For employers who are covered by the federal Family and Medical Leave Act, leave previously taken within the employer’s designated 12-month period counts against, and may thereby reduce, the leave available under Emergency FMLEA.  Similarly, to the extent an employee takes leave in the next eight months for Emergency FMLEA, the leave taken will count against the employee’s 12-month FMLA leave entitlement.

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