Summary of Key Provisions of the DOL’s Temporary Rule Governing Emergency Sick and FMLA Leave

The FFCRA requires private employers with fewer than 500 employees and government employers to provide emergency paid sick and FMLA leave benefits to employees for reasons related to COVID-19. On April 1, 2020, the U.S. Department of Labor issued a temporary rule expanding upon, and in some cases changing, prior guidance from the DOL in the form of “Questions & Answers” (Q&As) regarding employers’ obligations under the FFCRA. This alert summarizes some key new information included in the temporary rule.

Employees Are Not Entitled to Leave When There Is No Work Available: A consistent theme throughout both DOL’s earlier Q&A guidance and the new temporary rule is that, if an employee would not have been scheduled to work or if the employer has no work available for the employee to complete, the individual would not be entitled to paid leave. That is, the employee would be working but for one of the six permitted reasons for leave under the FFCRA. For example, but for an employee’s need to care for his or her mother who has been advised to self-quarantine by a health care provider, the employee would be working, either at the employer’s physical worksite or via telework.

Pay While Teleworking Limited: The DOL states in the temporary rule that, under the Fair Labor Standards Act, employees who telework typically must be paid from the time the employee begins working until the employee’s last work activity. Therefore, if an employee begins the day by sending an email at 7:00 a.m. and send his last email at 9:00 p.m., the employee would be entitled to payment for all the hours between 7:00 a.m. and 9:00 p.m. (Although not mentioned in the temporary rule, employers would still presumably be permitted to exclude bona fide rest or meal periods during which an employee is relieved of work responsibilities.) The new temporary rule provides that in the context of FFCRA leave, employers who permit their employees to telework for COVID-19 related reasons are only required to pay employees for the time that they actually work. Employers are not required to pay teleworking employees for unreported time, unless the employer knew or should have known about unreported telework. Note that this clarification does not relieve employers of the obligation to maintain accurate time records for non-exempt employees.

Government-issued Stay at Home Orders Are Considered Quarantine or Isolation Orders: One of the reasons for which an employee can use emergency sick leave under the FFCRA is if the employee is unable to work due to a federal, state, or local quarantine or isolation order, or because the employee is caring for an individual who is subject to such an order. The DOL’s temporary rule states that “[q]uarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, state at home, quarantine, or otherwise restrict their own mobility.” However, the temporary rule also states that to rely upon a quarantine or isolation order to take leave, the order must specifically require the employee to quarantine or isolate. The rule provides the following examples:

Example A: If a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.

Example B: If the coffee shop closed due to its customers being required to stay at home, the reason for the cashier being unable to work would be because those customers were subject to the stay-at-home order, not because the cashier himself was subject to the order.

Example C: If the stay-at-home order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier himself was subject to the order.

Example D: If a law firm permits its lawyers to work from home, a lawyer would not be prevented from working by a stay-at-home order, and thus may not take paid sick leave as a result of being subject to that order. In this circumstance, the lawyer is able to telework even if she is required to use her own computer instead of her employer’s computer. But, she would not be able to telework in the event of a power outage or similar extenuating circumstance and would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.

Note that, at least in Illinois, this last example may or may not apply. Law firms are “essential” businesses under the current Stay at Home Order issued by Governor Pritzker, so a lawyer who is unable to telework due to a power outage may be permitted to go to the office to perform essential work there. Employers will need to evaluate each situation on a case-by-case basis.

Paid Sick Leave for Exhibiting Symptoms of Covid-19 Is Limited: Employees seeking to take paid sick leave because they are exhibiting symptoms of COVID-19 must be affirmatively taking steps to obtain a medical diagnosis to qualify for emergency paid sick leave. These steps include “time spent making, waiting for, or attending an appointment for a test for COVID-19.” If an employee is sent home to self-quarantine while waiting for the results of a COVID-19 test, the employee is also entitled to leave unless the employee is permitted to telework. If the employee is permitted to telework, but chooses not to, he or she is not entitled to paid sick leave.

Clarification on When an Employee Can Use Leave to “Care for an Individual”: The original House bill would have allowed employees to take leave to care for a “family member” affected by COVID-19. “Family member” was later changed to “individual” in the final bill, but the FFCRA doesn’t define the term “individual.” The DOL’s new temporary rule provides at Section 826.20(a)(5) that the term “individual” is limited to certain people:

Individual means an Employee’s immediate family member, or person who regularly resides in the Employee’s home, or a similar person with whom the Employee has a relationship that creates an expectation that the Employee would care for the person if he or she were quarantined or self-quarantined. For this purpose, individual does not include persons with whom the Employee has no personal relationship.

Intermittent Leave: The DOL’s prior Q&A guidance stated that employees may use leave under the FFCRA intermittently if the employer and employee agree, and only to care for a child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19. The earlier guidance also seemed to say that, if an employee is teleworking, intermittent leave could be taken in any increment that an employer and employee agree upon, while an employee who is required to report to a worksite would need to take leave in full-day increments.

The DOL’s temporary rule clarifies this point, stating that even when an employee is still reporting to a worksite, the employee can take intermittent leave to care for a child as described above in any increment that the employee and employer agree upon. Emergency sick leave for other reasons still cannot be used intermittently.

Emergency sick leave for other reasons cannot be used intermittently unless the employee is teleworking. The DOL’s temporary rules state that “as teleworking employees present no risk of spreading COVID-19 to work colleagues, intermittent leave for any qualifying reason furthers the statute’s objective to contain the virus.” 

The rule provides that the intermittent leave agreement does not need to be memorialized in writing or signed by either the employer or the employee. It is best practice, however, to have a written record of any permission granted to an employee to take leave intermittently. This written record should include the employee’s name and the days/times when an employee is expected to work, and the days/times intermittent leave will be taken.

Caring for a Child Whose School Is Closed: As noted above, an employee can take both emergency paid sick leave and expanded FMLA leave to care for a child whose school or place or care is closed, or whose child care provider is unavailable, due to COVID-19. On March 31, 2020, the IRS issued guidance regarding what documentation will be necessary for an employer to apply for a tax credit under the FFCRA (see our alert for more insight into the IRS guidance). In the guidance, the IRS stated that an employee, when requesting leave, must provide a statement that “no other person will be providing care for the child during the period for which the employee is receiving [paid leave under the FFCRA].” The DOL’s temporary rule confirms that leave to care for a child as described above is only available “if no suitable person is available to care for [the employee’s child] during the period of such leave.”

The FFCRA’s statutory definition of child care provider is “a provider who receives compensation for providing child care services on a regular basis.” The DOL’s temporary rule deviates from this statutory language and expands the term to include family members, friends and neighbors who regularly care for the child but who are not compensated or licensed. (Whether the DOL has authority to make this change under the statute may well be a subject for later litigation.)

The Definition of a Child Expanded to Include Disabled Adult Children: The FFCRA’s provisions define a son or daughter as a child who is under the age of 18. Here again the DOL has taken liberty to expand the scope of the Act, stating that the definition of a “child” includes an employee’s son or daughter (biological, adopted, foster, step, legal ward, or individual for whom the employee stands in loco parentis) who is under the age of 18 as well as a child 18 or older who is incapable of self-care due to a mental and/or physical disability. The DOL says that this change was an exercise of its authority to issue regulations to ensure consistency between the provisions of the law.

Employees Eligible for Expanded FMLA Leave: The Coronavirus Aid, Relief, and Economic Security Act (“CARES” Act) made some amendments to the FFCRA, which are reflected in the DOL’s temporary rule. One such amendment provides that employees who were recently laid off or terminated and subsequently rehired can count their days of service prior to layoff or termination toward the 30-day employment eligibility requirement. The rule states that if an employee was laid off or otherwise terminated by his or her employer on or after March 1, 2020, and was subsequently rehired or reemployed by his or her employer on or before December 31, 2020 and “had been on the Employer’s payroll for thirty or more of the sixty calendar days prior to the date the Employee was laid off or otherwise terminated,” the employee is eligible for expanded FMLA leave.

Unpaid Period of Expanded FMLA Leave Clarified: The FFCRA states that an employee’s first 10 days of expanded FMLA leave “may consist of unpaid leave.” The DOL’s temporary rule changes this terminology from the first 10 days to the first two weeks. The DOL’s rationale is that, for most employees, two weeks of work is usually a 10-day period.

Additionally, the DOL’s rule states that the two-week period of unpaid expanded FMLA leave runs from the date that an employee uses leave under the expanded FMLA provision – not the first date that an employee used “regular” FMLA. In other words, an employee who has already used FMLA leave for a reason other than that covered by the expanded FMLA will still experience a two-week period of unpaid leave. However, employees who have not yet exhausted their emergency sick leave under the FFCRA will be entitled to use that paid leave to cover this initial 2-week unpaid period.

Substitution of Paid Leave: The DOL’s temporary rule confirms that the first two weeks of an employee’s leave under the expanded FMLA is unpaid, but that an employee can use any emergency paid sick leave he or she has available during this time. If an employee has already exhausted his or her emergency paid sick leave before the need for expanded FMLA leave arises, the employee may elect, or the employer may require, the employee to use “accrued leave under the employer’s policies that would be available to the employee to care for a child.”

While an employee is receiving 2/3 pay under the emergency sick leave or expanded FMLA provisions of the FFCRA, an employer and employee can agree to supplement the employee’s pay with any accrued employer-provided paid leave so that the employee receives 100% of his or her regular rate of pay (2/3 in FFCRA benefits and 1/3 covered by employer-provided paid leave).

Small Businesses Must Provide Employer Notice: We previously reported on the criteria a small business must meet to qualify for the small business exemption. The DOL’s temporary rule clarifies that even if a small business believes it will meet these criteria, the business must still post and provide to employees the notice of their right to paid leave under the FFCRA.

Employee Notice and Certification: The DOL’s temporary rule provides that if an employee needs for leave to care for a child whose school is closed, such notice must be given “as soon as practicable.” However, if an employee fails to provide proper notice of the need to use this leave, 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.” Therefore, employers should not deny a request for leave simply because an employee failed to provide proper notice of their need for leave.

The rule also states that an employer cannot require advance notice of the need for emergency sick leave. Instead, notice “may only be required after the first workday (or portion thereof) for which an Employee takes [leave].” “After the first workday,” an employer may “require notice as soon as practicable under the facts and circumstances of the particular case.” The rule also provides that “generally it will be reasonable for notice to be given 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 rule specifies that employers may require “oral notice and sufficient information for an Employer to determine whether the requested leave is covered ….” Somewhat contradictorily, the rule states that employees may be required to comply with an employer’s “usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” However, given the preceding language of the statute and the rule, it seems this can only be required after the first day of emergency sick leave.

Certification Requirements:

In an apparent contradiction of the notice requirement, the temporary rule goes on to state that an employee is required to provide documentation containing the following information prior to taking emergency sick or FMLA leave under the FFCRA:

1. The employee’s name;
2. The date or dates for which leave is requested;
3. A statement of the COVID-19 related reason the employee is requesting leave and written support of such reason; and
4. A statement that the employee is unable to work, including by means of telework for such reason.

Concerning #3 above, the temporary rule explains that if an employee submits a leave request “based on a quarantine order or self-quarantine advice, the statement from the employee should include”:

• The name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine; and
• In instances where the employee is seeking leave to care for a family member who is subject to quarantine or advised to self-quarantine, the name of the person the employee is caring for and their relation to the employee must be included.

If an employee seeks leave to care for a child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons, the employee’s statement must include:

• The name and age of the child(ren) to be cared for;
• The name of the school that has closed or place of care that is unavailable; and
• A representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave.

Guidance issued by the IRS earlier this week (summarized here) states that, in addition to the foregoing, employers seeking the tax credit available to non-government employers to cover the cost of FFCRA benefits should ask employees taking leave to care for a child age 15 to 17 to explain “special circumstances” as to why that child needs care during daytime hours.  The DOL’s temporary rule provides that an employer may deny leave to an employee who fails to provide information/documentation sufficient to support an employer’s claim to a tax credit.

Retention of Records: Employers must maintain all records related to an employee’s request for, grant, or denial of leave for at least four years. Additionally, to the extent that employees provide information orally in support of a leave request, the employer is required to reduce that information to writing and retain the written record for four years.

Status of the Rule: Although the rule has been issued by the DOL, it has not yet been published in the Federal Register. That is expected to occur on April 6, 2020. However, the rule provides that it is currently in effect and will remain in effect through December 31, 2020, when the FFCRA sunsets.  

We will update you as we obtain additional information. If you have any questions, do not hesitate to reach out to Tracey Truesdale, Bill Pokorny, Erin Fowler, or any other Franczek attorney.