On April 1, 2020, the Department of Labor issued a temporary rule interpreting the Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family and Medical Leave Expansion Act (“EFMLEA”) found in the Families First Coronavirus Response Act (“FFCRA”). The unpublished rule includes over 80 pages of discussion followed by specific guidance on key aspects of the FFCRA’s paid leave requirements, including the scope of exemptions for small employers, calculations of leave benefits for part-time employees, and notice and certification requirements. For the most part, the regulations mirror the FAQs recently released by the DOL.
The regulations comprehensively address many aspects of the FFCRA. Here we explore some of the specific questions we have received from our clients:
How long is the period of unpaid leave under the EFMLEA, and did the DOL provide additional guidance for calculating the amount of pay for part-time employees and employees with variable schedules?
The DOL acknowledged inconsistencies between the EPSLA and the EFMLEA regarding the period during which an employee may receive paid leave under the first Act before being eligible for paid leave under the second. As written, the EPSLA provides for two weeks of paid leave, and the EFMLEA provides for 10 days of unpaid leave before the pay requirement is triggered. In many cases, two weeks is equivalent to 10 days of work, so the provisions work seamlessly to provide a continuous stream of income to an employee on leave. The DOL recognized that 10 work days is not always the same as two weeks, though, and therefore interpreted the unpaid leave period in the EFMLEA to last for two weeks. See §826.24.
The DOL further provided guidance on calculations for part-time employees and employees working varying shifts. See §§826.21 and 826.24.
Are the exemptions for small businesses (employers with fewer than 50 employees) available for all types of paid leave, or are there limits based on the type of leave?
Both the EPSLA and the EFMLEA have provisions allowing employers with fewer than 50 employees to deny paid leave when providing the leave would present a hardship. The DOL rule clarifies that the EPSLA exemption is limited to only when the need for leave is occasioned by a school or daycare closure. Meaning, there is no exemption from the EPSLA when an employee is out of work because the employee is sick, quarantined, or caring for someone who is sick or quarantined (or for any of the other specifically-enumerated reasons under Section 5102(a)(1)-(4), (6)). Even small employers (who may have difficulty providing two weeks of paid leave) will need to do so if their employees meet the eligibility requirements. See §826.20.
How does a small business (with fewer than 50 employees) qualify for the exemptions when the need for leave is school or daycare closure?
The FFCRA has exemptions for employers with fewer than 50 employees only when the need for leave is because of school or daycare closures. The DOL explained that a small business can take advantage of the exemptions in both the EPSLA and the EFMLEA if an authorized officer of the business determines that:
- the requested leave “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;”
- the “absence of the [e]mployee . . . 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 could not operate at minimal capacity without the employee because “[t]here are not sufficient workers who are able, willing, and qualified” to do the work of the employee “at the and place needed.”
Employers seeking to use the exemption do not need to submit any documentation to the DOL, but must document the determination and retain relevant records. See §826.40.
Do employers have to accommodate requests for intermittent leave under the EPSLA or EFMLEA?
Employees are permitted to take both EPSLA and EFMLEA leave intermittently, but only if the employer agrees. Paid sick leave can only be taken intermittently if the reason for the leave is a school or daycare closure; EPSLA leave taken because of illness cannot be taken on an intermittent basis. See §826.50.
What notice do both employers and employees need to provide under the FFCRA and EFMLEA, and what certification can employers require?
All employers covered by the FFCRA’s leave provisions are required to post a notice containing all text in the Wage and Hour Division’s template FFCRA notice, which was published for the first time March 25, 2020. This means even small businesses taking advantage of the EFMLEA exemption, for example, must provide notice of the EFMLEA to their employees. See §826.80.
Employees seeking to use either type of paid leave must provide notice of the need for leave as soon as practicable, and employers can require employees to follow reasonable notice procedures. Employees are also required to provide minimum documentation substantiating the need for leave. Depending on the reason for the leave, an oral statement by the employee may suffice, or the employee may need to provide a written certification. The DOL outlines more specifically what kind of notice is required depending on the reason for the leave. If an employee fails to give proper notice, the employer is required to notify the employee of the failure and give the employee an opportunity to provide required documentation before denying the request for leave. See §826.90.
Do employers have to provide paid leave under the FFCRA if they are otherwise closed or closing the business during the pandemic, including because of a “stay at home” order?
No. Employees are only eligible for paid leave under the EPLSA and the EMFLEA when the employer is otherwise operating and has work available. The need for leave must be occasioned by one of the specifically-enumerated reasons, and business-related layoffs are not among those reasons. The EPSLA provides that an employee is eligible for paid sick leave if the employee is unable to work or telework because the employee is subject to a quarantine or isolation order. The DOL clarified that such orders can include “stay at home” orders applicable to “certain categories of citizens (e.g., of certain age ranges or of certain medical conditions)” if the orders cause an employee not to be able to work even though the employer has work for them. In the preliminary discussion of the Temporary Rule, the DOL explains that paid sick leave is not available when a business itself closes because of a stay at home order or because of a general economic downturn and thus the employer does not then have work available. See §§826.10 (definition of “Subject to a quarantine or isolation order”), 826.20(a)(2), and Discussion, Part B.
The DOL also noted that entitlement to paid leave under the EMFLEA ceases when an employee is otherwise laid off, consistent with ordinary FMLA regulations. See §826.160; Discussion, Part M.
Is this Rule final?
Not yet. The Temporary Rule is scheduled to be published on April 6, 2020. The same day the DOL released the Temporary Rule, Senator Patty Murray and Representative Rosa DeLauro wrote to Secretary Scalia to object to several aspects of the DOL’s previously released “Questions and Answers” document, which is largely consistent with the Temporary Rule. We recommend employers comply with the DOL guidance unless and until the DOL revises the Temporary Rule.
Is the DOL Enforcing the EPLSA and EFMLEA Immediately?
No. The Wage & Hour Division issued a Field Assistance Bulletin stating that the DOL will not bring enforcement actions for violations of the FFCRA occurring through April 17, 2020 (i.e., within 30 days from the March 18, 2020 enactment), as long as the employer “has made reasonable, good faith efforts to comply with the Act.” The WHD considers an employer to have acted “reasonably” and “in good faith” when:
- “The employer remedies any violations, including by making all affected employees whole as soon as practicable;”
- The violations were not “willful;” and
- The employer provides a written commitment that it will comply in the future.
The DOL will begin otherwise enforcing the Act on April 18, 2020, and it already set up a phone number for employees to report alleged violations.