Department of Labor Issues Temporary Rule Regarding Families First Coronavirus Response Act

On April 1, 2020, the U.S. Department of Labor (“DOL”) released a temporary rule (“the Rule”), at 29 C.F.R. § 826, regarding administration of the paid leave provisions in the Families First Coronavirus Response Act (“the Act”). The rule is effective from April 1, 2020 through December 31, 2020.

In many respects, the provisions in the Rule affirm or elaborate on the Q&A guidance (“the Guidance”) that the DOL had previously issued in three installments over the course of late March, which the Foley & Lardner Coronavirus Task Force outlined here, here, and here. Because the Rule and the Guidance cover much of the same ground, we have summarized below all of the DOL’s FFCRA information to date—including some key new provisions of yesterday’s Rule—in a one-stop-shop fashion.M

Where Are We Now?

The Act took effect April 1, 2020 and requires covered employers to provide varying amounts of paid leave in the form of Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFML), detailed below. These leave obligations are not retroactive. Likewise, any paid leave employers may have provided for COVID-19 related reasons prior to April 1, 2020 does not count toward these paid leave obligations. Note that covered employers are required to post an FFCRA Employee’s Rights Poster as of April 1, 2020. Finally, the DOL indicated there is a grace period on enforcement actions through April 17, 2020, so long as the employer has made reasonable, good faith efforts to comply with the Act.

In addition, the IRS has issued comprehensive information regarding the refundable tax credits for covered employers’ FFCRA leave payments.

Who Is a Covered Employer Obligated to Provide Leave?

DOL Guidance makes clear that when determining whether an employer has 500 or fewer employees, and is thus a “covered” employer under the Act, the employer includes: (i) all employees who are on leave; (ii) all temporary employees who are jointly employed by the employer and another employer – regardless of the payroll on which these employees are maintained; and (iii) all day laborers supplied by a temporary employment agency. Independent contractors under the Fair Labor Standards Act (FLSA) are not included. The DOL also noted that employees of separate corporate entities are not counted together unless they are joint employers under the FLSA, as detailed in the Department’s new Joint Employer Rule (issued on January 12, 2020), and as explained in the Fact Sheet on the Joint Employer Rule. The Guidance further clarified (citing the DOL’s Field Operations Handbook) that for companies that meet the four-factor integrated employer test under the FMLA (common management, interrelation between operations, centralized control of labor relations, and degree of common ownership or financial control), all of their employees count toward this threshold.

UPDATE: The Rule largely affirms this Guidance. In addition, the Rule affirms that to determine the number of employees, the employer must count all full-time and part-time employees employed within the United States at the time the employee would take the leave. As a practical matter, this means that employers who fluctuate around 500 employees need to keep close tabs on their employee census, as they may become subject to the Act at some point prior to December 31, 2020.

Who Is Exempt from FFCRA Paid Leave Requirements?

• Small Business Exemption Under Certain Circumstances

UPDATE: The Rule provides much needed details regarding the potential exemption from the FMLA and sick leave provisions of the FFCRA for employers with fewer than 50 employees (so-called “small employers”). According to 29 C.F.R. § 826.40(b), to utilize this exemption, an authorized officer of the business must determine and document that:

(i) The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

(ii) The absence of the employee or employees requesting leave 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

(iii) There are not sufficient workers who are able, willing, and qualified, and 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 small business to operate at a minimal capacity.

To elect this small business exemption, the employer must document that a determination has been made pursuant to the criteria set forth above. The documentation should not be submitted to the DOL, but rather should be maintained by the company for at least four years. Importantly, even if the company determines that this exemption applies, the company is still required to post the FFCRA Employee’s Rights Poster. While not entirely clear, the Rule suggests that the exemption determination should be made on a case-by-case basis in response to each employee’s leave request (as opposed to on a blanket basis). In light of this fact, employers should proceed with caution and ensure they are applying the exemption fairly and consistently in response to employee requests and business needs/requirements at the time.

• Health Care Providers and Emergency Responders (By Employer’s Choice)

The Act’s leave provisions refer to health care providers in two respects: (1) employees who have been advised by a health care provider to self-quarantine due to concerns related to COVID-19, such that they are eligible for EPSL; (2) employers of employees who are health care providers may choose to exempt those employees from the Act’s leave provisions. In another important clarification, the Guidance indicated that the term “health care provider” means two different things in these two scenarios.

A “health care provider” whose advice to self-quarantine due to COVID-19 concerns can be relied on to trigger EPSL obligations means a licensed doctor of medicine, nurse practitioner, or other healthcare provider permitted to issue a certification for purposes of the FMLA.

By contrast, a “health care provider” whose employer may choose to exclude them from the EPSL and EFML requirements of the Act is much broader. It is “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary 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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”

Considering the need for an all-hands-on-deck response to the pandemic, this broadened definition makes sense. That said, the DOL encourages employers “to be judicious” when applying this definition to help prevent the spread of COVID-19.

The Act also allows employers to exclude “emergency responders” from the EPSL and EFML requirements. The Guidance defines an emergency responder for this purpose as “an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of 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, 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 individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”

Again, the DOL reminds to be judicious when applying this definition to a leave request.

UPDATE: The Rule importantly affirms this Guidance. Although the Rule does not explicitly require a judicious interpretation, employers should keep that in mind based on the Guidance. As with the small business exemption, the Guidance indicates the healthcare provider/emergency responder exemptions are done on a case-by-case basis. Employers should therefore ensure they are applying their decisions fairly and consistently.

Two Types of Leave – Emergency Paid Sick Leave and Emergency Family Medical Leave

As we have previously summarized, the Act contains an Emergency Paid Sick Leave Act and an Emergency Family Medical Leave Expansion Act.

UPDATE: The Rule provides some helpful details about the circumstances in which paid leave under these Acts apply, referenced below. In addition, the Rule states that an employee’s use of EPSL is “one-time use.” That is, any person is limited to a total of 80 hours of EPSL – even if that person switches employers. The new employer is only obligated to provide any remaining balance of EPSL. It is not clear how employers will be able to administer or enforce this provision.

Emergency Paid Sick Leave (“EPSL”) – Six Reasons

Emergency Family Medical Leave – One Reason Only! (Same as EPSL Reason #5)

What Is the Average Regular Rate of Pay?

UPDATE: The DOL rule affirms the Guidance that the regular rate is calculated using FLSA methods, for both EFML and EPSL leave. It walks employers through a two-step calculation to determine the average regular rate of pay:

• Step (1): Compute the regular rate for each full workweek (using methods under FLSA regulations) that employee worked in six-month period predating leave, or the entire period of employment if less than six months.
• Step (2): Compute the average of weekly regular rates weighted by the number of hours worked for each workweek.

Note that under the Guidance, the DOL advised that employers can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and dividing that sum by all hours actually worked in the same period.

Who Is Full-Time, Who Is a Part-Time, and How Much Leave Do They Get?

The Guidance indicated that the EFML provisions do not distinguish between full- and part-time employees, although the number of hours an employee normally works each workweek will impact the amount of paid leave to which the employee is eligible. With respect to the EPSL, a full-time employee is one who is normally scheduled to work 40 or more hours per week. A part-time employee is one normally scheduled to work fewer than 40 hours per week.

UPDATE: The Rule largely affirms this guidance and provides more detail.

How to Calculate EFML Leave Hours Entitlement

For purposes of EFML, the Rule outlines that to calculate EFML leave entitlement, employers take the employee’s average regular rate of pay (detailed above) multiplied by the employee’s scheduled number of hours, capped at $200/day ($10,000 in the aggregate). So, what is the scheduled number of hours? Under the Rule, it is either:

• Normally scheduled hours for workday; or,
• If variable schedule and employee has been employed 6+ months, average number of hours employee was scheduled over six-month period predating leave; or,
• If variable schedule and employee employed less than six months, average number of hours employee and employer agreed to at time of hire; or, if no such agreement, average number of hours per workday employee was scheduled to work over the entire period of employment.

How to Calculate EPSL Leave Hours Entitlement

Full-time employees are entitled to up to 80 hours of EPSL, and for part-time employees, the number of available hours is calculated by determining the average number of hours the employee works in a two-week period. The Rule elaborates on these calculations:

• Full-time employees (40+week). Employees with variable schedules are also full-time if their average hours per workweek (including leave taken) is 40+ over prior six months (or length of employment if <6 months).
• Part-time employees (<40 week). For part-time employees with variable schedules:
  • If employed 6+ months, EPSL entitlement = 14x average number of hours that employee was scheduled to work each calendar day over prior six-months (including leave taken); or
  • If employed <6 months, EPSL entitlement = 14x number of hours employee & employer agreed to hire; or, if no agreement, 14x average number of hours per calendar day employee was scheduled to work over entire period of employment (including leave taken).

Who Is a “Son or Daughter”?

The Guidance clarified that “son or daughter” refers to an employee’s own child, which includes biological, adopted, foster, and step children; legal wards; and children for whom the employee is standing “in loco parentis,” which essentially means having day-to-day responsibilities to care for or financially support the child(ren). The fact that a child may have a biological parent at home does not mean that an employee cannot stand in loco parentis for that same child. In addition, the DOL clarified that children over 18 years old may be covered under the Act if they have a mental or physical disability which renders them incapable of self-care.

UPDATE: The Rule affirmed this guidance.

What Are the Documentation and Recordkeeping Obligations for EPSL and EFML?

UPDATE: The Rule addresses what an employee must provide in terms of notice of leave under both the EPSL and EFML. (The Guidance had flipped and flopped on this topic a bit, so we recommend sticking with the Rule.) For all notices, regardless of the type of leave requested, the employee must provide: employee’s name; date(s) for which leave is requested; qualifying reason for the leave; and an oral or written statement that employee is unable to work because of the qualified reason for leave. Additional requirements depend on the type of leave:

Note that obtaining and maintaining this information is tied directly to the employer’s ability to claim a tax credit. Also note, though, that the CDC cautions against requiring –and the Rule does not require – a formal doctor’s note substantiating an employee’s need for leave. And, some municipal ordinances expressly prohibit it. Our healthcare system is under current extreme operations conditions with the Pandemic, and the Department and most States have taken the position that employers should not add to this strain by seeking written notes sufficient to support leave under the FFCRA.

As for timing of the notice, the Rule contains some conflicting information. It indicates that leave to care for a child may be required with as much notice as practicable, but elsewhere indicates that no advance notice can be required. The best approach is to be reasonable under the circumstances, and particularly for EPSL leave, the Rule clearly indicates that means only requiring notice after the first workday (or portion thereof) for which an employee takes leave.

What Does It Mean to Be Unable to Work/Telework?

The Guidance clarified that “teleworking” for purposes of the Act means that the employer permits the employee to work while at home or some location other than the normal workplace.

An employee is “unable to work, including telework” if the employer has work for the employee – but the employee cannot perform such work either at the workplace or by teleworking – due to one of the six qualifying reasons for paid leave under the Act.

However, if an employer and employee agree that the employee will work the normal number of hours but outside the normal schedule, the employee is considered able to work. Similarly, to the extent employees can telework while caring for their child(ren), EPSL and EFML are not available. Finally, if an employer reduces an employee’s work hours due to a lack of work, the employee cannot use EPSL or EFML for the hours the employee is no longer scheduled to work.

UPDATE: The Rule largely affirms this Guidance. In addition, the Rule makes clear that neither EPSL or EFML are available to employees to care for children whose school/childcare is closed due to COVID-19 if there is another suitable personal available to care for the children during such time.

Can Employees Take EPSL or EFML Intermittently?

With respect to intermittent leave, the Guidance differentiates between EPSL and EFML, and between teleworking and working at the normal worksite.

Employees who are teleworking can take either EPSL or EFML intermittently (in any increment) while teleworking, with the employer’s permission.

Employees who are not teleworking can take EFML intermittently, with the employer’s permission. The employer and employee must agree on the schedule.

Employees who are not teleworking must take EPSL in full day increments. Whether it can be intermittent depends on the reason for the leave:

• Once the employee begins taking EPSL for any qualifying reason other than childcare during a school closure/unavailable childcare provider due to COVID-19, the employee must continue to take the leave each day until it is exhausted or until the employee no longer has a qualifying reason to take it. This is because the intent of the law is for sick employees to stay home continuously to stop spreading the virus.
• In contrast, with the employer’s permission, an employee who is not teleworking can take EPSL intermittently to care for a child whose school is closed/childcare provider is unavailable. Moreover, employers/employees can agree to intermittent leave on less than a full day basis for employees who are not teleworking and need to care for a child whose school is closed/childcare provider is unavailable.

UPDATE: The Rule largely affirms this guidance. In addition, the Rule adds that only the amount of leave actually taken may be counted toward the employee’s leave entitlements. It gives a helpful example, as well: an employee who normally works 40 hours in a workweek only takes three hours of leave each work day (for a weekly total of fifteen hours) has only taken 15 hours of the employee’s EPSL or 37.5% of a workweek of the employee’s EFML.

Are Employees Entitled to Paid Leave Under the Act If the Workplace Closed?

According to the Guidance, if an employer closes a worksite, employees are not entitled to EPSL or EFML. The Guidance indicates this is the case regardless of (a) whether the worksite closed before or after April 1, 2020 (the effective date of the Act); (b) whether employees are “furloughed,”; (c) whether the employer says it will reopen in the future; or (d) whether the closure is due to lack of business or pursuant to a Federal, State, or local directive. If the worksite closes while an employee is on paid leave, the employee is no longer eligible for paid leave following the closure. The Guidance directs employees to seek unemployment compensation benefits for recourse in the event of a workplace closure.

We had interpreted this Guidance on workplace closures as raising a question of whether the ever-growing number of state and local “shelter in place” or “stay at home” orders trigger an obligation under the Act’s requirement to provide EPSL when an employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.

UPDATE: The Rule does not discuss workplace closures specifically, but does clarify that a shelter-in-place or similar order does trigger an employee’s entitlement to EPSL (assuming the employee cannot telework and the employer otherwise would have work for the employee to do). However, if the worksite is closed and there is no telework that can be performed, then EPSL is not available to employees.

Does Health Coverage Continue During EPSL or EFML?

The Guidance distinguished EPSL from EFML on this front.

UPDATE: The Rule makes clear: employees on any FFCRA leave must maintain their coverage under any group health plan on same terms. The Rule also provides details regarding any changes to employer’s plans or employee’s termination of employment while on leave.

Does Leave Under the Act Run Concurrently with an Employer’s Preexisting Leave Policies?

The Guidance said generally, no. Employees and employers must usually agree to use leave under the Act simultaneously with employer-provided leave. In other words, employers cannot “top off” paid leave under the Act with PTO that an employee had already accrued under the employer’s policy, except by agreement. Note, however, that the tax credits available under the Act are capped at the maximum amount of EPSL or EFML, and no tax relief is available for any agreed-upon top off.

UPDATE: The Rule largely affirms this guidance as to supplementing EPSL or EFML. For example, if both parties agree, an employee could supplement their 2/3 EFML with 1/3 accrued PTO while their child’s school is closed. Note that the Rule outlines very limited circumstances in which an employer may require an employee to substitute PTO for any unpaid EFML time period, but as a practical matter, this situation is unlikely to arise often. As for EPSL, the Rule is clear that an employer may not require an employee to use PTO before the employee uses EPSL. Finally, the Rule indicates that if an employee is eligible for both EFML and EPSL due to the need to care for child whose school/childcare closed, those two benefits run concurrently.

Can Employees Collect Unemployment Insurance Benefits While Receiving EPSL or EFML?

Generally, no. However, the DOL notes that each state has its own unique unemployment compensation rules, and that the DOL recently clarified additional flexibility for states extending partial unemployment benefits to works whose hours or pay has been reduced. The Guidance directs employees to their appropriate state workforce agency.

UPDATE: The Rule does not address unemployment.

Do Employees Get Leave Under the Act If They Have Already Used Some or All of Their Conventional FMLA Leave?

Per the Guidance, employees are entitled to EPSL regardless of how much leave they have taken under the FMLA.

However, in a very significant clarification, the Guidance indicated that – for employers who are subject to the FMLA before April 1, 2020 – an employee’s eligibility for EFML depends on how much conventional FMLA leave the employee has already taken during the 12-month period that the employer uses for FMLA leave. In other words, the DOL states that an employee is entitled only to 12 weeks total of EFML plus conventional FMLA leave in the 12-month period. For example, assuming a 12-month period of January to December, an employee who took three weeks of FMLA leave for a surgery in January would only be eligible for nine weeks of EFML to use during their children’s school closure related to COVID-19. Likewise, an employee who has not used any conventional FMLA leave as of April 1, 2020, but who then takes six weeks of qualifying EFML, would only have six weeks of conventional FMLA remaining in the applicable 12-month period.

UPDATE: We had previously advised caution here, given the clear intent of the Act to provide EFML for an entirely different purpose than FMLA leave. However, the Rule absolutely confirms that an employee’s FMLA use will count against their EFML bank, and vice versa. Moreover, the Rule contains no reference to this calculation depending on whether the employer becomes covered under the FMLA after April 1, 2020. Finally, the Rule clarifies that an employee’s entitlement to EFML is a maximum 12 weeks, even if the use of those weeks span over the employer’s designated two 12-month FMLA leave periods.

Is Paid Leave Under the Act “Job Protected”?

The Guidance provided that employees are generally entitled to be restored to the same or an equivalent position upon return from either EPSL or EFML. Further, the Guidance clarified that employees are not protected from “employment actions, such as layoffs, that would have affected” the employees regardless of whether they took leave. The DOL specifically cited layoffs due to the closure of a workplace as one such example. In addition, other exceptions to the return-to-work requirement include highly compensated “key” employees as defined under the FMLA, and employees of certain small employers (employers with fewer than 25 employees) under very specific circumstances of economic hardship outlined in the Act.

UPDATE: The Rule confirmed this guidance.

As we previously noted, the COVID-19 pandemic presents an unprecedented and still-evolving legal landscape for employers. Therefore, the above interpretation is based on Foley & Lardner’s best judgment of available information in a rapidly changing and uncertain environment, and to that end we cannot guarantee that governmental authorities concur with the above. For more information about recommended steps, please contact your Foley relationship partner. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the CDC and the World Health Organization.

Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form.