The Families First Coronavirus Response Act (the “FFCRA”) was signed into law by President Trump on March 18 and became effective on April 1. Among its many provisions, the FFCRA included two new laws – the “Emergency Family and Medical Leave Expansion Act” (the “EFMLEA”) and the “Emergency Paid Sick Leave Act” (the “EPSLA”) – that have a direct and material impact on all employers with fewer than 500 employees.

Because of the haste with which the FFCRA was drafted and enacted into law, the statute overlooked many details regarding terminology and the process through which the statutes were to be implemented. Because of the compressed period of time in which employers were expected to begin paying benefits under the EFMLEA and the EPSLA, employers were compelled to rely on educated guesses about how some of the provisions of these statutes would ultimately be construed and implemented.

In late March, the DOL issued two “guidance” documents which shed some light on how the DOL intended to interpret the new legislation. On April 1, the DOL issued a 124 page regulation to address and elaborate on some of the unanswered questions in the EFMLEA and the EPSLA, and on April 6, the DOL re-issued that regulation with only minor, technical changes. The link to the DOL’s latest version of its regulation is here.

In light of the uncertainty experienced by many employers up to this point, several points in the new, final regulation bear special mention.

  • Section 826.10(a) clarifies that a “Quarantine or Isolation Order” (as that term is used in the EPSLA) includes “shelter-in-place or stay-at-home orders issued by any Federal, State or local government authority.” The DOL’s latest iteration of its regulation (though far from a model of clarity) indicates that, in cases where the employer has no work for the employee to perform – regardless of the reason for that lack of work and including cases where the employer’s lack of work is caused by a quarantine or isolation order which requires the employer to shut down – the employee is not entitled to paid sick leave.

  • Section 826.10(a) clarifies that, a “Son or Daughter” (as that term is used in both Acts) includes a biological child, adopted child, foster child, stepchild, legal ward, or child of parent standing in loco parentis (i.e. acting for all purposes as the child’s parent) who is under 18, or is 18 years of age or older and is incapable of self-care because of a mental or physical disability.

  • Sections 826.20(a)(6), (b) clarify that, a leave of absence to care for a Son or Daughter is available “only if no other suitable person is available to care for the Son or Daughter during the period of such leave.”

  • Section 826.21 (a) clarifies that, for purposes of calculating paid leave for a full time employee, a full-time employee is one who is “normally scheduled to work at least 40 hours each workweek.”

  • Section 826.40(b)(2) clarifies that, if a small business (less than 50 employees) claims the small business exemption (which is available only for leaves caused by a need to care for an employee’s son or daughter), then “the Employer must document that a determination has been made pursuant to the criteria set forth by the DOL.” Such documentation must include an acknowledgment by an “authorized officer of the business” that one or more of the following applies:

    • The requested leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity; or
    • 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 the employees’ 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.
  • Section 826.50(a) clarifies that, if (and only if) the employer and employee agree, then paid sick leave – like expanded FMLA leave – can be taken on an intermittent basis.

  • Section 826.70(b), (c), and (e) clarify that, if an employee takes expanded FMLA leave, that employee is not entitled to 12 weeks of expanded FMLA leave in addition to the employee’s annual entitlement to 12 weeks of normal FMLA leave. To the contrary, the employee’s use of regular FMLA leave counts against the employee’s entitlement to expanded FMLA leave and vice versa. In addition, all rights to expanded FMLA expire on December 31, 2020. An employee is entitled – at most – to a total of 12 weeks of expanded FMLA leave, and, once used, that entitlement never replenishes. This is true even if an employer’s non-calendar FMLA year re-sets at any point in time before December 31, 2020.

  • Section 826.100 clarifies that an employer is entitled to demand that an employee provide written verification of the need for leave under the EFMLEA and/or the EPSLA, and that an employee’s failure or refusal to do so is proper grounds upon which an employer may rely to decline to pay the statutory benefits.

  • Section 826.140 elaborates on the nature of documentation that an employee must provide to qualify for paid leave under either the EFMLEA or the EPSLA. This section also clarifies that the employer bears the obligation to gather such information and to ensure that such documentation is maintained for at least four years. Further, the employer’s failure to do so could result in forfeiture of the employer’s right to receive a tax credit for payments made under either Act.

  • Sections 826.110(a), (b), (e) and (g) clarify that, while an employee is taking leave under either the EFMLEA and/or the EPSLA, the employer is obligated to maintain health benefits for that employee, and the employee is responsible to pay the employee portion of the premium for those benefits. The employer’s obligation to maintain health benefits ends at the point that the employee’s employment would otherwise have been terminated such as if the employee fails to return from leave or the employer closes its business.

  • Section 826.130(a) clarifies that, generally, an employee returning from leave under the EPSLA is entitled to the same reinstatement rights as an employee returning from EFMLEA. Also, a narrow exception to the duty to reinstate an employee may be available, under some circumstances, for employers with fewer than 25 employees.

As always, if you have questions about the latest DOL regulation or any other issue related to COVID-19, please feel free to contact any one of the members of the firm’s Employment Team.

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Law Firm of Conway, Olejniczak & Jerry, S.C.

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