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FFCRA: A practical primer of what employers need to know

Apr 2, 2020

Introduction

On April 1, 2020 — the effective date of the Families First Coronavirus Response Act (FFCRA) — the Department of Labor (DOL) issued “temporary regulations” to interpret and enforce the landmark legislation passed by Congress “to assist working families facing public health emergencies” arising out of the COVID-19 pandemic.  The Regulations which expire with the FFCRA on December 31, 2020, follow intense interest and debate over the meaning and scope of the FFCRA’s language and the 59 questions and answers issued by the DOL in late March.  

The FFCRA contains two components: (1) the Emergency Paid Sick Leave Act (EPSLA), which entitles certain employees to take up to two weeks of paid sick leave; and (2) the Emergency Family and Medical Leave Expansion Act (EFMLEA), which permits certain employees to take up to 12 weeks of expanded family and medical leave, 10 of which are paid, for specified reasons related to COVID-19. The Regulations provide the framework through which those two components work and how employers can comply with them, answering and filling in gaps left by the original legislation and the subsequent Q&As. According to the DOL, the average covered employer of less than 500 employees “will likely need to spend one hour to read the rule and determine their responsibilities” under the FFCRA, notwithstanding that the Regulations span more than 120 pages! We think it would take substantially more than an hour, and the purpose of this publication is to help employers quickly understand the FFCRA’s key components, including:

  • How and when employers are required to calculate the number of employees for determining whether they are a covered employer;
  • What criteria must be met for a “small business” of fewer than fifty employees to claim the “hardship exemption”;
  • What documentation an employer may require to determine whether an employee is eligible for EPSLA and/or EFMLEA;
  • How leave under the FFCRA interacts with an employer’s other leave policies;
  • What it means to “telework” and the flexibility of it, including work at “unconventional times”;
  • What differences exist between caring for a child under the age of fifteen and one who is older, and the impact of having two caregivers at home at the same time on a request for leave;
  • Whether “healthcare providers” exempted under the FFCRA are defined more broadly than those directly involved in and responding to the COVID-19 pandemic;
  • How an employee on leave must be paid, particularly when she does not have regular work hours and is required to utilize any existing accrued paid leave; and,
  • What remedies are available for a violation of the FFCRA.

In addition to the Regulations, employers should also review carefully the guidance issued by the IRS on the payroll tax credits available under the FFCRA.

Summary and Analysis

Section 826.10: General (Definitions)

  • As a general matter, all the FMLA definitions apply to the EFMLEA (but not necessarily the EPSLA) unless specific definitions were included in the EFMLEA that are different.  The majority of terms found in the EPSLA and EFMLEA (for example “employ,” “employee,” “person,” and “State”) are based on those same terms as defined in other employment law statutes and their regulations, most especially the FLSA.
  • The definition of “child care provider” under the FFCRA does not require the provider be a compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the employee’s child.
  • The definition of “son or daughter” under the FFCRA is: “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.”
  • The definition of “a Quarantine or Isolation Order” under the FFCRA means a “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.”

Section 826.20: Paid Leave Entitlements

  • An employer must provide two weeks of paid sick leave under the EPSLA to an employee who is unable to work for one of the following six reasons:
  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider;
  • The employee is caring for an individual who is subject to an order or directed quarantine as previously described;
  • The employee is caring 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; or
  • The employee has a substantially similar condition as specified by the Secretary of Health and Human Services.

  • An employer must also provide twelve weeks of expanded family and medical leave under the EFMLEA to an employee who is caring for his or her child whose school or place of care has been closed or whose child care provider is unavailable for reasons related to COVID-19.  The leave qualification is same as the fifth qualification for paid sick leave under the EPSLA.

  • An employee “subject to a Quarantine or Isolation Order” is eligible for paid sick leave under the EPSLA only if being subject to one of these orders prevents him or her from working or teleworking.  In other words, an employee may take paid sick leave only if “but for being subject to the order,” he or she would be able to perform work that is otherwise allowed or permitted by his or her employer, including telework.  Therefore, an employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee, even if the reason for that lack of work related to a Quarantine or Isolation Order (for example, when such an order prevents customers from going to the employer’s premises and thus there is no work for the employees to perform).
  • An employee subject to a quarantine or isolation order is able to telework, and therefore may not take paid sick leave, if (a) the employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work.
  • The advice to self-quarantine must be based upon the health care provider’s belief that the employee “has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.” As with an order to quarantine or self-isolate, self-quarantining must prevent the employee from working, including teleworking, to make that employee eligible for paid sick leave.
  • The symptoms an employee must experience to qualify for paid sick leave include: fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the CDC). Additionally, paid sick leave taken because of experiencing symptoms must be limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis, such as time spent making, waiting for, or attending an appointment for a test for COVID-19.
  • To be eligible for paid sick leave to care for another individual, “the individual being cared for must be an immediate family member, roommate, 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 self-quarantined or was quarantined.”
  • Generally, an employee is not eligible to take paid sick leave for child care 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.

Section 826.21: Amount of Paid Sick Leave

  • Full-time employees are entitled to up to 80 hours of paid sick leave.  An employee is considered “full-time” if he or she is normally scheduled to work at least 40 hours each workweek or, if the employee does not have a normal weekly schedule, if the average number of hours per workweek that the employee was scheduled to work over the past six months is at least 40 hours per workweek.  If an employee has not been employed six months, the average should be from their entire period of employment.
  • Part-time employees (all employees that do not satisfy the definition for a full-time employee) are entitled to the number of hours of paid sick leave equal to the number of hours that the employee is normally scheduled to work over two workweeks.  A part-time employee whose weekly work schedule varies should be entitled to paid sick leave equal to fourteen times the average number of hours that the employee was scheduled to work per calendar day over the past six months, or if an employee has not been employed six months, the average number of hours that the employee was scheduled to work per calendar day over their entire period of employment.

Section 826.22: Amount of Pay for Paid Sick Leave

  • For each hour of paid sick leave taken for one of the first three qualifying reasons, the employer shall pay the employee the higher of:
  • The employee’s average regular rate as computed under § 826.25;
  • The federal minimum wage; or
  • Any applicable state of local minimum wage.
  • For each hour of paid sick leave taken for one of the final three qualifying reasons, the employer shall pay the employee the higher of two-thirds of the amount they would be entitled to for leave taken for one of the first three qualifying reasons.
  • This pay is capped at $511 per day and $5,110 in the aggregate for leave taken for one of the first three qualifying reasons and at $200 per day and $2,000 in the aggregate for leave taken for one of the final three qualifying reasons.

Section 826.23: Amount of Expanded Family and Medical Leave

  • Employees are entitled to take up to twelve workweeks of expanded family and medical leave between April 1, 2020 and December 31, 2020. 
  • Any expanded family and medical leave taken counts towards the twelve workweeks of FMLA leave to which the employee would otherwise be entitled.
  • As provided under Section 2612(d)(2)(A) of the FMLA, an employee may elect to use, or an employer may require an employee to use, accrued leave that under the employer’s policies would be available to the employee to care for a child, such as vacation or personal leave or paid time off concurrently with the expanded family and medical leave under the EFMLEA. 

Section 826.24: Amount of Pay for Expanded Family and Medical Leave

  • The first two weeks of expanded family and medical leave taken are unpaid.  However, an employee may elect to have expanded family and medical leave and paid sick leave (including paid sick leave take to care for a child) run concurrently.  Note that although the statute states that this period is 10 ten workdays, to harmonize the EFMLEA with the EPSLA, the DOL has altered this period to two weeks.
  • The number of hours of expanded family and medical leave an employer must pay is equal to the employee’s scheduled number of hours for each day of such leave taken, or, if the employee does not have regularly scheduled hours, the average number of hours that the employee was scheduled to work per calendar day over the past six months. If an employee has not been employed six months, the number of hours should be the average number of hours the employer and employee agreed upon at the time of hiring the employee, or if no such agreement exists, the average number of hours that the employee was scheduled to work per calendar day over their entire period of employment.
  • For each hour of expanded family and medical leave taken after the first two weeks, the employer shall pay the employee the higher of two-thirds of the higher of:
  • The employee’s average regular rate as computed under § 826.25;
  • The federal minimum wage; or
  • Any applicable state of local minimum wage.
  • This pay is capped at $200 per day and $10,000 in the aggregate for the ten weeks after the initial two-week period of unpaid leave.
  • Despite the cap on pay, an employee may elect to use, or an employer may require that an employee take leave under the employer’s policies that would be available to the employee to care for a child, such as vacation or personal leave or paid time off, concurrently with expanded family and medical leave up to a full day’s pay, and the employer must pay the employee a full day’s pay for that day.

Section 826.25: Calculating the Regular Rate under the FFCRA

  • An employee’s regular rate is computed for each workweek in the same way as defined under section 7(e) of the FLSA, to mean “all [non-overtime] remuneration for employment” paid to the employee except for eight statutory exclusions, divided by the number of hours worked in that workweek. See 29 U.S.C. 207(e); see also 29 CFR Parts 531 and 778.
  • The regular rate used to determine the amount of pay under the EPSLA and the EFMLEA is average of the employee’s regular rate over the previous six months.  If the employee has not been employed for six months, then the average regular rate should be computed over the entire term of the employment.

Section 826.30: Employee Eligibility for Leave

  • All employees of an employer are eligible for paid sick leave under the EPSLA, except for health care providers and emergency responders.
  • To be eligible for expanded family and medical leave under the EFMLEA, an employee must have been on the employer’s payroll for at least thirty calendar days.  An employee who was terminated on or after March 1, 2020 and was subsequently rehired, is eligible for expanded family and medical leave so long as that employee was on the employer’s payroll for thirty or more of the sixty calendar days prior to the date the employee was terminated.
  • The definition of a “health care provider” who an employer may exempt pursuant to sections 3105 and 5102(a) of the FFCRA is broader than the definition of a “health care provider” under 29 CFR § 825.102 or one that may advise self-quarantining under 29 CFR § 826.20.  A “health care provider” for the purposes of employee eligibility is defined broadly to include any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency, such as “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” as well any individual employed by an entity that contracts with any of these institutions to provide services or maintain the operations of those facilities.
  • An emergency responder is also defined broadly to include those categories of employees who (1) interact with and aid individuals with physical or mental health issues, including those who are or may be suffering from COVID-19; (2) ensure the welfare and safety of communities within the United States; (3) have specialized training relevant to emergency response; and (4) provide essential services relevant to the American people’s health and wellbeing, such as “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 declared emergency, as well as individuals who work for such facilities employing these individuals.”

Section 826.40: Employer Coverage

  • Employers covered by the FFCRA include any private entity or individual who employs fewer than 500 employees.  There is no distinction between for-profit and non-profit entities; employers of both types must comply with the FFCRA if they otherwise meet the requirements for coverage.
  • To determine the number of employees employed, the employer must count all full-time and part-time employees employed within the United States and its territories at the time the employee would take leave.
  • An employer with fewer than 50 employees is exempt from providing paid sick leave under the EPSLA and expanded family and medical leave under the EFMLEA to an employee when the imposition of such requirements would “jeopardize the viability of the business as a going concern.” A small employer satisfies this requirement if an authorized officer of the business as determined that:
  • Such 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 absence of the employee or employees requesting such leave 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 find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.
  • To elect the small business exemption, the employer must document that a determination has been made pursuant to the criteria set forth above. The employer should not send such documentation to the DOL, but rather retain the records in its files.
  • Regardless, of whether the small employer chooses to exempt one or more of its employees, it must still comply with the notice requirement of § 826.80.

826.50: Intermittent Leave

  • An employer and employer must agree on the terms of intermittent leave under the EPSLA and EFMLEA, including about the increments of time in which leave may be taken.  Absent an agreement, paid leave cannot be taken intermittently.
  • The agreement should be either reduced to writing or a clear and mutual understanding between the employer and employee that the employee may take EPSLA and/or EFMLEA leave intermittently.
  • When an employee is required or permitted to telework, the employee should generally be allowed broad flexibility in taking intermittent leave, including take intermittent leave in any agreed increment of time while the employee is teleworking.
  • If an employee is working at the employer’s worksite, EPSLA or EFMLEA leave may only be taken intermittently if an employee is taking leave in order to care for a child whose school is closed or other care provider is unavailable due to COVID-19. Once an employee working at a worksite begins taking paid leave for any other reason, he or she must continue to take leave until leave is exhausted or there is no longer a qualifying reason for taking paid leave.

826.60: Intersection between the EPSLA and the EFMLEA

  • An employee is not entitled to pay for the first two weeks of EFMLEA leave.  If the employee is eligible for EPSLA leave, he or she may take it concurrently with the first two weeks of EFMLEA leave.  If an employee is not entitled to EPSLA leave because her or she has already exhausted their EPSLA entitlement, the employee may, at his or her discretion, choose to take paid time off (PTO) or other paid leave offered by the employer concurrently with the first two weeks of EFMLEA leave.

826.70: Intersection of the EFMLEA and the FMLA

  • The EFMLEA statute adds a sixth qualifying reason for FMLA leave to the existing 12-week FMLA entitlement.  It does not create an entitlement to 12 additional weeks of leave.  If an employee has already taken some FMLA leave in the current 12-month period, his or her available leave under the EFMLEA is reduced by the amount of FMLA leave already taken. 
  • An employee is entitled to only two total weeks of paid leave under the EPSLA.  If an employee has already used two weeks of EPSLA leave, and then later requests leave for another qualifying reason, he or is are not entitled to a second term of EPSLA leave.

  • Employees are entitled to only twelve total weeks of paid leave under the EFMLEA.  So, even if the period of EFMLEA coverage (April 1 to December 31, 2020) spans two 12-month periods for purposes of other types of FMLA leave, the employee is not entitled to two 12-week periods of EFMLEA leave. 
  • An employer and employee may agree to substitute PTO for the two-thirds of regular rate of pay amount under the EFMLEA.  However, neither the employer nor the employee can require the substitution of PTO.

826.80: Employer Notice

  • All covered employers must post and keep posted a notice of the FFCRA’s requirements in a conspicuous place on the worksite where employees or job applications can see it.  The latest model notice was released March 25, 2020, and is available here.
  • Instead of physically posting the notice, employers may distribute the notice by email or mail or post it electronically on an employee information website.
  • Employers may use a different notice form than the model notice, so long as it contains all the required information and the content is accurate and readable.
  • Employers are not required to post notice in other languages, but a Spanish version of the model notice is available.
  • For employers who are covered by the EFMLEA but not the FMLA (generally, those with fewer than 50 employees), the EFMLEA notice also satisfies their FMLA notice requirements. In other words, these employers are not required to post both the EFMLEA notice and regular FMLA notices. 
  • Employers are not required to follow regular FMLA notice requirements, such as notice of eligibility, rights and responsibilities, and written designations, for EFMLEA leave requests.  However, employers who already have established procedures for meeting these FMLA requirements may choose to follow them for EFMLEA leave.

826.90: Employee Notice of Need for Leave

  • An employee is required to give notice of their use of EPSLA leave or EFMLEA leave.
  • An employer may not require advance notice to take leave under either the EPSLA or EFMLEA.  The earliest notice may be required is after the first workday or partial workday for which the employee takes leave and/or misses work for a covered reason.  After the first workday, notice should be given as soon as practicable.
  • Notice by an employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) is generally considered reasonable notice if the employee is unable to give notice personally.
  • Employers may require that the employee provide oral notice and sufficient information for an employer to determine whether the requested leave is covered by the FFCRA. 
  • 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 employer may require employees to comply with the employer’s usual notice procedures and requirements for requesting leave, absent unusual circumstances. 
  • An employer may not require an employee’s notice to provide documentation beyond what is allowed by § 826.100 (below).

826.100: Documentation of Need for Leave

  • An employee taking EPSLA or EFMLEA leave must provide documentation containing the following information prior to taking leave:
  • Employee’s name;
  • Date(s) for which leave is requested;
  • Qualifying reason for leave; and
  • Oral or written statement that the employee is unable to work because of a qualified reason for leave.
  • The type of documentation an employee is required to provide to his or her employer prior to taking EPSLA or EFMLEA leave depends on the qualifying reason or leave:
  • An employee requesting paid leave due to a state, federal, or local quarantine or isolation order must provide the name of the government entity that issued the order.
  • An employee requesting paid leave because he or she has been advised by a health care provider to self-quarantine must provide the name of the health care provider.
  • An employee requesting because he or she must care for an individual under a quarantine order must provide the name of other the government entity or health care provider issuing the order, as applicable.
  • An employee requesting to take paid leave or expanded family and medical leave to care for a child must provide the following information: (1) the name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
  • An employer may require than an employee provide any additional documentation as is needed for the employer to support a request for tax credits under the FFCRA.
  • While not included in § 826.90, guidance issued along with the regulations also advised that, if an employee is requesting leave for their own COVID-19-related serious health condition or to care for a family member with a COVID-19-related serious health condition, regular FMLA certification requirements still apply, if the employer is covered by regular FMLA.

826.110: Health Care Coverage

  • Employees who take EPSLA and EFMLEA leave are entitled to continued coverage under employers’ group health plans on the same terms as if they did not take leave, including maintaining all benefits.
  • If an employer changes its health plan while an employee is on EPSLA or EFMLEA leave, the employer must give the employee notice of the change and provide the employee the same access and opportunity to change plans or benefits as if they did not take leave. 
  • Maintenance of individual health insurance policies purchased by an employee from an insurance provider is the responsibility of the employee.
  • Employees in a group health plan who take EPSLA or EFMLEA leave remain responsible for paying the same portion of the plan premium as they paid before taking leave.
  • If an employee chooses not to retain group health plan coverage while on leave, they are entitled to be reinstated on the same terms when they return as they had prior to taking leave.
  • If an employee is laid off or otherwise terminated while on leave or fails the return from leave, the employer’s obligation to maintain health benefits ceases, except as required by COBRA.

826.120: Multiemployer Plans (Collective Bargaining Agreements)

  • An employer that is a signatory to a multiemployer collective bargaining agreement (CBA) may satisfy its obligations under the EFMLEA and the EPSLA by making contributions equal to the paid leave to which an employee would otherwise be entitled under the FFCRA to a multiemployer fund, plan, or other program consistent with its CBA.
  • The fund, plan, or other program must allow employees to obtain their pay for the leave to which they are entitled under the FFRCA.
  • Employers may also satisfy their FFCRA obligations by means other than through contributions to the multiemployer plan, provided the means are consistent with the CBA. 

826.130: Return to Work

  • In most instances, an employee is entitled to be restored to the same or an equivalent position upon return from EFMLEA and EPSLA leave in the same manner that an employee would be returned to work after FMLA leave.  FMLA job restriction and equivalent position regulations apply. 
  • The FFCRA does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether the leave was taken. The employer must be able to demonstrate that the employee would have been laid off even if he or she had not taken leave.
  • The right to restoration after leave does not apply to employers with fewer than 25 employees if all four of the following conditions are met:
  • The employee took leave to care for a child whose school was closed or childcare provider was unavailable;
  • The employee’s position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by a public health emergency (i.e., due to COVID-19 related reasons) during the period of the employee’s leave;
  • The employer made reasonable efforts to restore the employee to the same or an equivalent position; and
  • The employer makes reasonable efforts for a period of one year to contact the employee if an equivalent position becomes available. The 1-year period is calculated from the employee’s leave concludes or twelve weeks after the employee’s leave began, whichever is earlier.
  • The existing limitation to FMLA entitlement for key employees also applies to EFMLEA leave.

826.140: Recordkeeping

  • Employers are required to keep documentation supporting leave provided by employees (as outlined above) for four years, regardless of whether leave was granted or denied.  
  • If an employee provides oral notice of request for leave, the employer must document the request and retain the documentation for four years.
  • If an employer denies an employee’s request under the small business exemption, the employer must document the determination that the exemption criteria is met and retain the documentation for four years.
  • If an employer plans to claim tax credits from the IRS under the FFCRA, it should maintain the following records for four years:
  • Documentation showing how the employer determined the amount of paid leave paid to employees, including records of work, telework, and paid leave
  • Documentation showing how the employer determined the amount of qualified health expenses the employer allocated to wages
  • Copies of any completed IRS Forms 7200 the employer submitted to the IRS
  • Copies of the completed IRS Forms 941 the employer or its third-party payer submitted to the IRS
  • Any other documents needed to support the request for tax credits pursuant to applicable IRS forms, instructions, and information

826.150: Prohibited Acts and Enforcement under EPSLA

  • Under the EPSLA, employers are prohibited from discharging, disciplining, or discriminating against any employee because the employee took paid sick leave, initiated a proceeding under or related to paid sick leave, or testified or is about to testify in such a proceeding.  An employer who violates this section of the EPSLA is deemed to have violated the anti-retaliation provision of the FLSA, and the FLSA’s enforcement provisions apply.
  • An employer who violates the EPSLA’s paid sick leave requirement is deemed to have failed to pay the minimum wage required by the FLSA.
  • The FLSA’s enforcement provisions apply to EPSLA violations.  This includes enforcement actions by the Department of Labor, individual employees, or a class of employees; liquidated damages; and reasonable costs and attorneys’ fees. 

826.151: Prohibited Acts and Enforcement under EFMLEA

  • Under the EFMLEA, the FMLA’s prohibitions on interference and retaliation apply.  Specifically, employers are prohibited from interfering with, restraining, or denying an employee’s exercise of or attempt to exercise any right under the FMLA, including the EFMLEA; discriminating against an employee for opposing any practice made unlawful by the FMLA, including the EFMLEA; or interfering with proceedings initiated under the FMLA, including the EFMLEA.
  • The FMLA’s enforcement provisions apply to EFMLEA violations if the employer is covered by FMLA.  In other words, if an employer is only covered by the EFMLEA and not by regular FMLA, an employee cannot bring an action against the employer under the EFMLEA. 

826.152: Filing a Complaint with the Federal Government

  • Any employee may file a complaint with the Department of Labor, Wage and Hour Division for alleged violations of the EFMLEA or EPSLA.

826.153: Investigative Authority

  • The Department of Labor may conduct investigations regarding the EPSLA under the same terms as the FLSA.
  • The Department of Labor may conduct investigations regarding the EFMLEA under the same terms as the FMLA.

826.160: Effects on Other Laws, Employer Practices, and CBAs

  • Paid sick leave under the EPSLA is in addition to, not a substitution for, any other sources of leave which the employee has accrued or is otherwise entitled to before April 1, 2020.  Neither the entitlement to nor use of EPSLA leave may be counted against an employee’s other leave entitlements.
  • Neither EPSLA leave nor EFMLEA leave may be denied on the grounds that an employee had already taken another type of leave for a COVID-19-related reason prior to April 1, 2020.
  • The ESPLA prohibits using ESPLA leave in a way that “diminish[es] the rights or benefits that an employee is entitled to under any . . . existing employer policy.”  The DOL defines “existing employer policy” in this context “to include a COVID-19 related offering of paid leave that the employer voluntarily issued prior to April 1, 2020, and under which employees were offered more paid leave than under the employer’s standard or current policy.” So if, for example, an employer offered its employees paid time off in response to the crisis, the employer may not count that time taken against an employee’s EPSLA or EFMLEA entitlement.  However, an employer may terminate any voluntary additional paid leave offerings as of April 1, 2020, provided the employer has not amended their policy to reflect the new leave offerings.
  • Employees have no right to retroactive paid leave under the EPSLA or EFMLEA for leave taken before April 1, 2020. 
  • Employees are entitled to take EPSLA leave before they take any other type of leave.
  • Employers shall not require, coerce, or unduly influence an employee to use another source of paid or unpaid leave before taking EPSLA leave.
  • Employers shall not require, coerce, or unduly influence an employee to use another source of paid leave before taking EFMLEA leave. 
  • An employee may elect or an employer may require an employee to use other types of leave concurrently with EFMLEA leave.  The employer must pay the full amount due the employee under the employer’s preexisting paid leave policies for this concurrent leave, even if it exceeds the EFMLEA caps, but the employer’s eligibility for tax credits will be capped at $200/day and $10,000 in aggregate.   
  • Employers have no obligation to provide, and employees have no entitlement to receive, financial compensation for unused EPSLA or EFMLEA leave for employees whose employment ends between April 1 and December 31, 2020 or after the FFCRA expires on December 31, 2020.
  • No employee is entitled to more than 80 hours of paid EPSLA leave.  This is true regardless of whether the employee changes job titles, positions, or even employers during the FFCRA period.  If an employee took less than his or her full EPSLA entitlement from the prior position or employer, the subsequent position or employer must provide paid leave until the full 80 hours is exhausted.

Conclusion

These Regulations are complicated, often twisting and interacting with other leave to which employees may be entitled under the FMLA and general leave policies, wage calculations under the FLSA and applicable state law. Yet employers must understand and comply with these Regulations while simultaneously running a business amidst a global pandemic and crisis the likes of which many Americans have never before faced.  This wholly new regulatory scheme is the new normal for many employers, and vigilance, understanding, and compliance is critical.  If you have any questions about how the FFCRA applies to your business and employees, please contact a member of Waller’s labor and employment practice group (link).

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