The Families First Coronavirus Response Act (FFCRA), including the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLA) was enacted on March 18, 2020. As outlined in prior articles on the Butler Snow COVID-19 Hub, these new laws provide for up to 80 hours of paid sick leave and up to 10 weeks of paid family and medical leave for certain specified reasons related to COVID-19, for employees of covered employers.
On April 1, 2020, the United States Department of Labor issued a Temporary Rule pertaining to the requirements of the EPSLA and EFMLA which is effective from April 2, 2020 through December 31, 2020. The USDOL has also issued and periodically amended a list of Frequently Asked Questions regarding these new laws.
As the non-enforcement period for the FFCRA ended on April 17, 2020, employers should make sure they are up to speed and should be doing their best to be in full compliance with all aspects of the FFCRA. In the initial hectic weeks of the pandemic, some employers laid off large portions of their workforces, while others switched entirely to telework and kept paying employees as usual whether they were working or not. These actions may have delayed the need to look closely at FFCRA issues. But as employers settle into the “new normal” during the coming days and weeks of phased-in reopening, including transitioning back from telework to on-site work, and/or bringing back laid off or furloughed employees, the FFCRA will remain in effect and should not be forgotten.
Having worked with our clients for a few weeks now regarding FFCRA compliance issues, Butler Snow’s Labor & Employment attorneys have compiled a list of some of the most frequently asked questions we have received regarding the FFCRA. The answers below are based on the information available in the Temporary Rule and other current guidance from the USDOL. It should be noted that, even now, not all aspects of the FFCRA are crystal clear, and so employers should check this site and the USDOL Wage & Hour Division website frequently for the latest enforcement guidance updates.
- How does an employer determine if they employ less than 500 employees?
For purposes of determining whether a private employer is covered, employers should count full-time and part-time employees at the time the employee’s leave is to be taken. Employers should include employees on leave; temporary employees, employees who are jointly employed regardless of whether the jointly-employed employees are maintained on the employer’s payroll; and day laborers supplied by a temporary agency if there is a continuing employment relationship. Only employees in the United States, or its territories or possessions, are counted. Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees.
- Does an employer include employees of interrelated businesses or jointly employed individuals for purposes of having less than 500 employees to be covered under the EFMLEA and EPSL or the small employer exemption?
EFMLEA and EPSLA requires private employers with fewer than 500 employees to provide paid leave under the Act. Private employers with 500 or more employees are not covered and do not have obligations under the EFMLEA or EPSL. Smaller employers are covered. The smallest employers – those with fewer than 50 employees –may or may not be subject to the EFMLEA or EPSLA provisions related to school closures and childcare unavailability as discussed herein. Thus, it is important to correctly identify the number of employees to ensure employer compliance and the tax relief provisions that apply to payments under the act.
Section 826.40(a) of the Final Rule provides that joint or integrated employers must combine employees in determining the number of employees they employ for this purpose. In general, a corporation (including its separate establishments or divisions) is a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers. The FLSA’s test for joint employer status applies in determining who is a joint employer for purposes of coverage, and the FMLA’s test for integrated employer status applies in determining who is an integrated employer.
FLSA’s test for joint employer status
If two entities are found to be joint employers, all their common employees must be counted in determining whether paid sick leave must be provided under the EPSLA or EFMLEA. The joint employer test comes into play where two or more businesses exercise control over the work or working conditions of the employee. Where an employee performs work which simultaneously benefits two or more employers a joint relationship can also exist. If either one of these tests are met, then the companies would be considered one employer and the employees should be aggregated for purposes of determining whether the FFCRA applies.
FMLA’s test for integrated employer status
In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA. If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of EFMLEA and EPSL. To determine whether separate entities will be deemed to be parts of a single employer under the integrated employer test, the following factors are considered: (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of common ownership/financial control. See § 825.104(c)(2). The DOL instructs that integrated employer relationship is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality.
- Are small employers (employ fewer than 50 employees) exempt from providing EFMLEA and EPSL?
The regulations provide that an employer, including a religious or nonprofit organization, with 49 or fewer employees, is exempt from providing EPSLA or EFMLEA leave for child-care purposes when allowing such leave would jeopardize the viability of the business as a going concern. Of note, the exemption for employers with fewer than 50 employees applies only to leave related to school closures and childcare unavailability. § 826.40(b). It does not apply to other types of paid sick leave under the act. To use this exemption, an authorized officer of the employer must determine that:
- The requested leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
- the employee’s absence would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
- the small employer cannot replace the employee requesting leave and the requesting employee’s work is needed for the small employer to operate at a minimal capacity.
Section 826.40(b)(1). To elect this small business exemption, the employer must document that an authorized officer made this determination. The DOL advises that employers should retain those records in their files but should not send this documentation to the DOL.
We encourage employers to determine whether this exemption is available on a case-by-case basis. The DOL indicates that “the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.” This suggests that small business employers who wish to utilize the exemption must consider whether the exemption applies according to the circumstances of each request for leave.
Small businesses are still obligated to provide EPSLA to employees who need leave because they themselves are subject to a quarantine or an isolation order; they have been advised by a health care provider to self-quarantine; they are experiencing COVID-19 symptoms and are seeking a medical diagnosis; or they are caring for an individual who is subject to a quarantine order or has been advised to quarantine. There is no exception for small businesses from this requirement. In addition, small businesses must still post notice of the act’s requirements.
- Are employees eligible for EFMLEA and EPSLA if there is a government order to quarantine/isolate?
As an initial matter, this issue is limited to the 80 hours of paid leave under the EPSLA, not the longer period under the EFMLEA, because the EFMLEA does not have a quarantine provision and is only for employees who need leave due to COVID-19-related child care issues.
In considering whether an employee is qualified to take leave under EPSLA, the DOL distinguishes situations in which no work is available from those in which a qualifying event causes an employee to be unable to work or telework. For qualifying events, the DOL indicates a “but for” standard should be applied: “The question is whether the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order.” 85 FR 19329. Thus, if the employer has work the employee can perform, and the employee can perform this work on site or via telework, then if a government order to quarantine prevents the employee from performing this work the employees can use leave under EPSLA. The DOL provides some (but not total) clarity on “subject to a quarantine or isolation order”:
For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.
§ 826.10(a). For example, where state travel orders impose mandatory 14-day quarantines on individuals arriving from another state and an employee is unable to telework during this 14-day quarantine but work on site is available Section 826.10(a) would apply.
With respect to how shelter-in-place or stay-at-home orders may impact an employer’s obligations under the FFCRA, the DOL offers the example of a coffee shop that does not have work for employees to perform because it closed operations due to a stay-at-home order. In this situation, the employees cannot take leave. 85 FR 19329. The DOL noted:
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. Similarly, if the 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.
- Who is a “health care provider” who may be excluded by their employer from EFMLEA and EPSLA?
An employer whose employee is a “health care provider,” or an “emergency responder” may exclude such employees from the benefits of the EPSLA and EFMLEA. The DOL’s Final Rule defines “health care provider” extremely broadly to include anyone employed by a health care provider or who contracts with a health care provider to provide services or to maintain the operation of the facility. § 826.30(c). In its preliminary discussion of the applicable regs, the DOL noted it had initially considered a narrower definition of “healthcare providers who may be excluded but found “a more narrow definition could leave health care facilities without staff to perform critical services needed to battle COVID-19.” Final Rule, p.77.
The regulations define a health care provider as “anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary 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.” § 826.30(c)(1)(i).
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions. 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. § 826.30(c)(1)(i). 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.
Importantly, the regulations make clear that the definition of “health care provider” contained in this subsection applies only for the purpose of determining whether an Employer may elect to exclude an Employee from taking leave under the EPSLA and/or the EFMLEA and does not otherwise apply for purposes of the FMLA or section 5102(A)(2) of the EPSLA. § 826.30(c)(1)(iii).
- Who is an “emergency responder” who may be excluded by their employer from EFMLEA and EPSLA?
For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is:
anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to 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, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a Start Printed Page 19352declared 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 whom 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.
See § 826.30(C)(2).
- If an employee has a co-parent, co-guardian, or the usual child care provider at home to watch children, do employers have to allow such situated employees leave under either the EPSLA or the EFMLEA?
The FFCRA provides that an employee is entitled to leave if the “employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable” due to COVID-19 related reasons. A “child care provider” is someone who receives compensation for providing child care services on a regular basis.
In the introduction to the Temporary Rule, the DOL noted that “an employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for his or her child. Generally, an employee does not need to take such leave if another suitable individual – such as a co-parent, co-guardian, or the usual child care provider – is available to provide the care the employee’s child needs.” (p. 18) Further, Section 826.20(a)(6) and Section 826(b) of the newly issued regulations mirror that requirement, providing that an employee is entitled to EPSLA Leave and EFMLA Leave if he or she is unable to work due to a need to care for his or her Son or Daughter whose School or Place of Care has been closed, or whose Child Care Provider is unavailable, for reasons related to COVID-19 only if no other suitable person is available to care for the Son or Daughter during the period of such leave. Further, the IRS guidance entitled “COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Business FAQs,” Question 44 [link] suggests that an employer’s claim for tax credits for EPSLA and EFMLEA paid leave related to a school closing or child care provider unavailability will be substantiated if the employer obtains a representation from the employee that “no other person will be providing care for the child during the period for which the employee is receiving the paid leave.”
So, you are within your rights to ask an employee who requests leave based on his or her childcare situation to represent that no other suitable person is available to provide care to seek the EPSLA and EFMLEA paid leave. However, if the employee makes that representation, the employee is most likely entitled to the paid leave.
- Can an employee take leave under the EPSLA or the EFMLEA to care for a child due to school closure or child care unavailability if the child is a teenager?
Maybe. The FFCRA provides for EPSLA and EMFLEA paid leave if an employee has a need to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons. The term “son or daughter” has the meaning given such term in section 101 of the FMLA (29 U.S.C. 2611). Accordingly, the term means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older who is incapable of self-care because of a mental or physical disability. However, the IRS guidance entitled “COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Business FAQs,” Question 44 provides that if the employee is taking leave in the daylight hours to care for a child older than 14, the employee must provide a statement that special circumstances exist requiring the employee to provide care. If the employee cannot provide a statement that special circumstances exist such that the employee must care for a child older than 14 during the daylight hours, the employee may not be entitled to the leave.
- Are employees who have already exhausted the FMLA leave eligible for EFML and EPSL?
In this scenario, employees are authorized to take EPSL, but the EFMLA would no longer be available. Section 826.70(b) states, “[i]f an Eligible Employee has already taken the full twelve workweeks of FMLA leave during the twelve-month period, the Eligible Employee may not take Expanded Family and Medical Leave.” Id. However, “[a]n Eligible Employee’s entitlement to take up to two weeks of Paid Sick Leave under the EPSLA is not impacted by the Eligible Employee’s use of FMLA leave.” Id. Likewise, if an employee has used some, but not all, of her annual FMLA leave prior to requesting EFMLA, the FMLA already used may be deducted from the 10-week allotment of EFMLA leave.
- What documentation/certification can an employer request from employees to support the need for EPSL or EFMLA?
Section 826.100 provides guidance on what documentation is required for leave:
(a) An Employee is required to provide the Employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA or Expanded Family and Medical Leave under the EFMLEA:
(1) Employee’s name;
(2) Date(s) for which leave is requested;
(3) Qualifying reason for the leave; and
(4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.
(b) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(i), an Employee must additionally provide the Employer with the name of the government entity that issued the Quarantine or Isolation Order.
(c) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(ii) an Employee must additionally provide the Employer with the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19. (d) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(iii) an Employee must additionally provide the Employer with either:
(1) The name of the government entity that issued the Quarantine or Isolation Order to which the individual being care for is subject; or
(2) The name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19. 115
(d) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(v) or Expanded Family and Medical Leave, an Employee must additionally provide: (1) The name of the Son or Daughter being cared for; (2) The name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and (3) A representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave. (f) The Employer may also request an Employee to provide such additional material as needed for the Employer to support a request for tax credits pursuant to the FFCRA. The Employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. For more information, please consult:
- Do employees maintain a right to return to work after utilizing paid sick leave or expanded family and medical leave under the EPSLA or the EFMLEA?
Yes. On return from Paid Sick Leave or Expanded Family and Medical Leave, an employee has a right to be restored to the same or an equivalent position. § 826.130
Remember though that employees are not protected from employment actions, such as layoffs, that would have affected an employer’s workforce regardless of whether employees took leave under either the EPSLA or the EFMLEA. Employers can lay off employees for a number of legitimate business reasons including the closing of its business or particular worksites, without violating the FFCRA.
Employers may also refuse to return highly compensated “key” employees as defined under the FMLA. In addition, if an employer has fewer than 25 employees, and the employee took leave to care for his son or daughter whose school or place of care was closed, or whose child care provider was unavailable, an employer may decline to reinstate the employee if all four of the following “hardship” conditions exist:
- The employee’s position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of leave;
- The employee’s employer made reasonable efforts to restore the employee to the same or an equivalent position;
- The employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
- The employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the employee’s leave began, whichever is earlier.
- If employees take paid sick leave under the EPSLA, does that count against other types of paid sick leave to which I am entitled under State or local law, or my employer’s policy?
No. Paid sick leave under the EPSLA is in addition to other leave provided under Federal, State, or local law; an applicable collective bargaining agreement; or an employer’s existing company policy. See § 826.160 (An Employee’s entitlement to, or actual use of, Paid Sick Leave under the EPSLA is in addition to—and shall not in any way diminish, reduce, or eliminate—any other right or benefit, including regarding Paid Sick Leave, to which the Employee is entitled under any of the following: (i) Another Federal, State, or local law, except the FMLA as provided in § 826.70; (ii) A collective bargaining agreement; or (iii) An Employer policy that existed prior to April 1, 2020.)
- Can employees use paid sick leave and expanded family and medical leave together for any COVID-19 related reasons?
No. The EFMLEA applies only when employees are on 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. See § 826.70
- Can employers require employees to use PTO concurrently with PSL and EFMLA?
No, employers are specifically prohibited from requiring employees to use up other offered leave before using the FFCRA Leave. This qualified leave is in addition to the benefits already provided. The FFCRA specifically states that an employee affected by COVID-19 has the right to use paid emergency sick leave before using existing PTO benefits; an employer cannot require an employee to use PTO prior to receiving paid sick time under the FFCRA. In other words, the law specifically allows employees to choose the order in which they take their leave. See § 826.160(b)(2) (“No Employer may require, coerce, or unduly influence any Employee to first use any other paid leave to which the Employee is entitled before the Employee uses Paid Sick Leave. Nor may an Employer require, coerce, or unduly influence an Employee to use any source or type of unpaid leave prior to taking Paid Sick Leave.”).