The Department of Labor, Wage and Hour Division has issued a “Temporary Rule” providing additional guidance and definition to the Families First Coronavirus Act (FFCRA). This rule went into effect on April 1, 2020. This is not the final rule nor is it the guidance we await related to the definition and clarification of the CARES stimulus. This is the next step in the process. It provides clarification and definition to the FFCRA so that employers can begin to understand and implement the relief provided for by the Act. What follows is a brief summary of some of the more pertinent points of consideration. We will continue to develop and provide updated information on specific elements of the Act as they are received. To be clear, below we have identified the new rules, definitions and clarification of process provided for by the “Temporary Rule” part 826 of Title 29 of the Code of Federal Regulations. As these laws progress, this rule may be adopted in its entirety or it may by modified in part. Today, it is in effect and it is the active state of the Act.
Documentation of Need for Leave:
An employee must provide his or her employer a signed statement in support of paid sick leave or expanded family and medical leave to include:
- the employee’s name;
- the date(s) for which leave is requested;
- the COVID-19 qualifying reason for leave; and
- a statement representing that the employee is unable to work or telework because of a qualified COVID19 reason
Each of the various reasons for leave requires a similar signed statement with varying elements. For example, requests for leave pertaining to quarantine or isolation order require confirmation of the government authority or order upon which the request is based.
Quarantine and Isolation Orders:
Quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.
- An employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking as described therein.
- An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee.
- An employee 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. The employee may be eligible for state unemployment.
Where an employee is unable to work because he or she has been advised by a health care provider, as defined in 29 CFR 825.102, to self-quarantine for a COVID-19 reason. Advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. Self-quarantining must prevent the employee from working. Employee may not self-quarantine because of fear of possible exposure.
Where an employee is unable to work because he or she needs to care for an individual who is either: (a) subject to a Federal, State, or local quarantine or isolation order; or (b) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19 §826.20(a)(5) explains that paid sick leave may not be taken to care for someone with whom the employee has no personal relationship.
Definition of Son or Daughter:
The definition of son or daughter for purposes of the EFMLEA and the EPSLA has been expanded from “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 a public health emergency,” to include, “children 18 years of age or older and incapable of self-care because of a mental or physical disability.”
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.
Telework has been clarified to provide; “Employees who are teleworking for COVID-19 related reasons must always record—and be compensated for—all hours actually worked, including overtime, in accordance with the requirements of the FLSA.”
Health Care Provider:
The FFCRA, however, is not limited to diagnosing medical professionals. Rather, such health care providers include any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency. Such individuals include not only medical professionals, but also other workers who are needed to keep hospitals and similar health care facilities well supplied and operational. They further include, workers who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat the COVID-19 public health emergency.
Accrued Time Off:
Generally, when an employee qualifies for leave under both Acts, an employee may first use the two weeks of paid leave provided by the EPSLA. This use runs concurrent with the first two weeks of unpaid leave under the EFMLEA. Any remaining leave taken for this purpose is paid under the EFMLEA. An employee may elect to use, or an employer may require an employee to use, accrued leave that 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 the expanded family and medical leave under the EFMLEA.
Section 826.60 further explains that where an employee has already taken some FMLA leave in the current twelve-month leave year as defined by 29 C.F.R. § 825.200(b), the maximum twelve weeks of EFMLEA leave is reduced by the amount of the FMLA leave entitlement taken.
These are some of the most relevant highlights of the Temporary Rule. We will provide additional blasts focused on other pertinent sections including the Small Business Exception and corresponding requirements, Calculation of Employees, Payments and Hours and Intermittent Leave. As always, if you have questions or need assistance applying these new rules to your workforce please do not hesitate to contact our Employment Practice Group at 1-888-488-2638