The U.S. Department of Labor (DOL) has issued temporary regulations clarifying and otherwise addressing several complex aspects of the Families First Coronavirus Response Act (FFCRA), which provides Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave (EFML) for qualifying reasons related to COVID-19. What follows is a summary of a few of the key takeaways from the new DOL regulations.
Small Business Exemption
Small businesses with fewer than 50 employees are exempt from the requirement to provide EPSL and EFML due to a child’s school or place of care closing (or the childcare provider’s unavailability) due to a public health emergency if the leave payments would jeopardize the viability of their business as a going concern. However, the small business exemption does not exempt a business from the requirement to provide EPSL for any other qualified reasons.
Certain criteria are used to determine whether providing the above childcare-related leave would jeopardize the viability of a company’s business as a going concern: (1) such leave would cause the employer’s expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of their specialized skills, knowledge of the business or responsibilities; or (3) the 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 employer to operate at a minimal capacity.
An employer need not formally apply for the exemption, but it must document that an authorized officer of the employer has determined that the employer meets the above criteria (and retain a copy of the document memorializing such determination).
Employees requesting to take EPSL or EFML on an intermittent basis may only do so if their employer agrees to such use and agrees to the increments of time in which the employee may take the leave. Assuming the employer agrees to the above, the regulations provide guidelines as to when intermittent leave is permissible. For example, if an employer directs or allows an employee to telework, then the employee may take EPSL or EFML intermittently while the employee is teleworking. In contrast, employees who continue to report to an employer’s worksite may only take EPSL or EFML intermittently in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite. In this latter circumstance, an employer and employee may agree that the employee may take EPSL or EFML intermittently solely to care for the employee’s son or daughter whose school or place of care is closed because of reasons related to COVID-19. However, when an employee takes EPSL for other qualifying reasons (which may increase the potential spread of COVID-19 to the workplace), the employee must continue to take the leave each day until the employee either uses the full amount of leave or no longer has a qualifying reason for taking EPSL.
Interplay of EFML and EPSL with Other Leaves
Eligible employees may elect to use, or an employer may require the use of, EFML concurrently with any leave offered under the employer’s policies that would be available for the employee to take to care of his or her child (e.g., accrued vacation, personal leave or PTO); but, employers may not require the use of other paid leaves provided by the employer before permitting an employee to use EPSL.
Use of EPSL and Teleworking
The regulations clarify that an employee may not take EPSL where the employer does not have work for the employee; this is the case because he or she would be unable to work even if he or she were not required to comply with the quarantine or isolation order. Thus, if the employee is able to telework, but no work is available to the employee, the employee cannot take EPSL. Additionally, an employee subject to a quarantine or isolation order can telework, and, therefore, may not take EPSL, if (1) his or her employer has work for the employee to perform; (2) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (3) there are no extenuating circumstances that prevent the employee from performing that work.
These new temporary regulations, which can be found here, help to clarify many, but not all, ambiguities in the FFCRA. Notably, while the DOL has issued these regulations and companion FAQs, Democrats in Congress have penned an open letter to the DOL expressing frustration that the purported purpose of the FFCRA is being undercut by the DOL’s interpretation and related guidance. Similarly, the state of New York filed a civil complaint against the DOL challenging its regulations for narrowing the number of people eligible for leave under the FFCRA, which New York argues is contrary to what Congress intended. Thus far, the DOL has not revised its guidance in response to these actions.