On April 6, 2020, the Department of Labor published final regulations as required under The Families First Coronavirus Response Act (“the Act”), which went into effect on April 1, 2020. The Act provides paid sick leave, free testing, food assistance and unemployment benefits.
As discussed in my March 26, 2020 article, the most important provisions of the Act for employers relate to an expansion of the Family and Medical Leave Act (“FMLA”), which is now being called the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) which will cover more employers and employees, and the paid sick leave provision, which is now being called the Emergency Paid Sick Leave Act (“EPSLA”).
This article contains additional information on the Act and incorporates relevant portions of the final regulations issued by the Department of Labor. My previous article in this series included, in addition to a discussion of the Act, a discussion of the Equal Employment Opportunity Commission’s guidance for employers dealing with COVID-19, which is not discussed here. Please visit the other article for that information.
The Emergency Family and Medical Leave Expansion Act
The EFMLEA provides as follows:
- Employers with less than 500 employees are covered. This means that you are covered by these provisions if you have at least one employee.
- An eligible employee is someone who has been employed with you for at least 30 calendar days. This covers both full and part-time employees.
- An eligible employee may take up to 12 weeks of job-protected leave if the employee is unable to work (or work remotely) because he or she needs to care for the employee’s son or daughter due to closure of the child’s school or place of care, or the child’s usual care provider is unavailable, due to a public health emergency. The regulations refer to “son or daughter” instead of “child,” and include individuals 18 or older who are unable to care for themselves due to a mental or physical disability.
- This leave can only be taken if no other suitable person is available to care for the son or daughter.
- An employer is not required to provide leave if it no longer has work for the employee. For example, if the business closes due to a stay-at-home order. This also applies to provisions of the EPSLA.
- An employee may not take leave if the employer does not have work for the employee.
- Intermittent (non-consecutive) leave is permissible.
- The first 10 days of this leave may be unpaid. However, the employee can substitute sick, personal or vacation time to which he or she is otherwise entitled during this initial 10 days of leave. This includes sick pay under the EPSLA.
- After the initial 10 days, the employer must provide paid leave.
- If your business is covered by the “regular” FMLA, additional analysis is needed to determine how much EFMLEA an employee is entitled to if that employee has already taken “regular” FMLA during the previous 12 months.
- The amount of pay to which a full-time employee is entitled is equal to two-thirds of the employee’s regular pay rate for the number of hours the employee is otherwise normally scheduled to work.
- If an employee is part-time or doesn’t work a set number of hours (in other words, their hours are variable), then you will have to determine the average number of hours the employee worked over a six-month period.
- The Act limits the pay entitlement to $200 per day and $10,000 total per employee.
- Employers with more than 25 employees will have the same obligation under the FMLA to restore an employee to the same or equivalent position when he or she returns from leave. Employers with less than 25 employees are excluded from this requirement if: (1) the employee’s position no longer exists due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by the public health emergency; (2) the employer makes reasonable efforts to restore the employee to the same position or equivalent, with equivalent employment benefits, pay and other terms and conditions of employment; and (3) the employer attempts to return the employee to an equivalent position within one year.
- Employees are not protected from employment actions, such as layoffs, that would have affected the employee regardless of whether he or she took leave. In order to deny restoration to employment, employers must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested.
The Emergency Paid Sick Leave Act
This EPSLA also applies to employers with less than 500 employees. It provides for emergency paid sick leave for the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19. Employers are not required to pay employees subject to a quarantine or isolation order if the employer does not have work for the employee as a result of the order or other circumstances.
- The employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19. An employee may take paid sick leave as described in this paragraph only if:a. The employee has COVID-19;b. The employee may have COVID-19; orc. The employee is particularly vulnerable to COVID-19; andd. Following the advice of a health care provider to self-quarantine prevents the employee from being able to work at the employee’s normal workplace or by telework (telework is defined in the act, and is essentially work that the employer allows the employee to perform while at home or at a location other than the employee’s normal workplace).
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis from a heath care provider. Symptoms include any of the following:a. Fever;b. Dry cough;c. Shortness of breath; ord. Any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention (“CDC”).Any paid leave taken under this paragraph is limited to time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis.
- The employee is caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19 or has been advised by a health care. provider to self-quarantine due to concerns related to COVID-19. An employee may not take sick leave under this provision if the employer does not have work for the employee.
- Caring for their son or daughter if the school or place of care of the child has been closed or the child care provider of such child is unavailable due to COVID-19 precautions. The regulations refer to “son or daughter” instead of “child,” and include individuals 18 or older who are unable to care for themselves due to a mental or physical disability. An employee may not take sick leave if the employer does not have work for the employee. An employee can take intermittent leave under the circumstances in this paragraph only.
- Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Eligible full-time employees are eligible for 80 hours of paid sick time. Part-time employees are eligible for the number of hours that the employee works, on average, over a 2-week period. The regulations include detailed calculations for full and part-time employees who don’t work a “normal” weekly schedule, which is beyond the scope of this memorandum, but which we can discuss if you have any such employees requesting this leave.
For paragraphs 1 through 3 above, the paid sick leave is equal to the greater of the employee’s regular rate of pay or the applicable minimum wage, up to $511 per day and $5,110 total per employee. For paragraphs 4 through 6, an employee is entitled to 2/3 of the employee’s regular rate of pay up to $200 per day and $2,000 total per employee.
Employers may not require an employee to use other paid leave before using EPSLA paid sick time.
And employers may not require an employee to search for or find a replacement employee to cover the hours in which the employee is using the paid sick time.
Exemptions from EFMLEA and EPSLA
Employers with less than 50 employees may be exempt from providing paid leave under the EFMLEA and the EPSLA if the imposition of the requirements for paid leave would jeopardize the viability of the business as a going concern. Such a business is entitled to an exemption if an authorized officer of the business has determined that:
- The leave requested would result in the business’s expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
- 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
- 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 the exemption, the employer must document that a determination has been made pursuant to the criteria above and retain the documentation in its files. The Department of Labor does not want employers to send the documentation to it.
If an employer rejects a request for leave based on this exemption, then it must document the determination that it is eligible for an exemption and retain the documentation for four years.
Required Notice from Employees Seeking Leave
Employers can require employees to follow reasonable notice procedures after the first workday (or portion of a workday) for which the employee takes leave. If the reason for leave is to take care of a son or daughter whose school or other place of care is closed due to COVID-19, and that leave is foreseeable, then that notice should be given as soon as practicable.
Notice cannot be required in advance unless it is foreseeable, and may only be required after the first workday for which leave is taken.
Whether a procedure is reasonable will be determined under the facts and circumstances of each particular case.
If an employee fails to give proper notice, the employer should give the employee notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.
An employee is required to provide the following documentation:
- Employee’s name;
- Dates for which leave is requested;
- Qualifying reason for leave; and
- Oral or written statement that the employee is unable to work because of the qualified reason for leave.
In addition, if the employee is requesting paid leave under the EPSLA because he or she was advised to self-quarantine by a health care provider or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, then the employee must also provide the name of the health care provider who advised the employee to self-quarantine.
If the employee is seeking either paid leave under the EPSLA or the EFMLEA to care for a son or daughter, then the employee must also provide the following:
- The name of the son or daughter;
- The name of the school, place of care or child care provider that has closed or become unavailable; and
- A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave.
- Employers are required to retain all documentation for four years, regardless of whether leave was granted or denied. If an employee provided oral statements to support a request for leave, then the employer is required to document these statements in its records.
Required Employer Notices
There are tax credits for employers who are required to provide FMLA leave or sick leave under the Act. Employers can request necessary documentation for these credits from employees who take leave. Your CPA will be able to discuss this issue with you once they have an opportunity to review this legislation. Although I am not a CPA, I am happy to discuss the legal issues relating to the tax credits, but you should seek advice from a tax professional.
Violations of the Act
Violations of the EPSLA can result in liability under the Fair Labor Standards Act for failure to pay due and owing wages, and violations of the EFMLEA can result in liability under the “regular” FMLA. So, if you get requests for leave, I recommend that you contact your legal counsel to ensure that you are following the requirements of the Act.