Department of Labor Releases Additional Regulations Which Answer Many Questions

Posted: April 7, 2020 | News

In its continued efforts to provide interpretive guidance for employers attempting to comply with the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) released new regulations that interpret key parts of the FFCRA’s emergency paid sick leave and expanded family and medical leave requirements.  The regulations can be found here[CM1] [JM2]  in their entirety.  Some of the important points addressed by the DOL in the regulations include the following:  

Employees May Sue Employers for Failing to Comply with the FFCRA

The regulations state an employer who fails to provide an eligible employee with emergency paid sick leave under the FFCRA is considered to have failed to pay the minimum wage under the Fair Labor Standards Act.  As a result, employees have a private right of action to assert on behalf of themselves, and other similarly situated employees, a claim to recover an amount equal to the federal minimum wage for each hour of emergency paid sick leave denied, an additional amount as liquidated damages, and an amount for costs and reasonable attorney’s fees. 

Employees Aren’t Entitled to Paid Leave Under the FFCRA Where No Work is Available

The FFCRA’s emergency paid sick leave mandate maintains that sick leave must be provided to employees unable to work because they are subject to a Federal, State, or local COVID-19 quarantine or isolation order.  The DOL’s regulations now provide clarity as to what constitutes a quarantine or isolation order.  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 emergency paid sick leave if being subject to one of these orders prevents him or her from working or teleworking.  An employee subject to one of these orders may not take emergency paid sick leave where the employer does not have work for the employee. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees.  In that instance, the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order.

Employers With Less Than 50 Employees May be Exempt From Providing Paid Leave Under the FFCRA if the Leave is Related to Childcare

The DOL provided more information as to how businesses with fewer than 50 employees may be exempt from providing emergency paid sick leave and expanded FMLA leave for employees unable to work due to school closures or childcare unavailability.  An employer may be exempt from these leaves when granting the leave would jeopardize the viability of the business as a going concern.  This occurs when an authorized officer of the business has determined that either:  (1) the requested leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; (2) the absence of the employee requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or (3) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee, and these labor or services are needed for the small business to operate at minimal capacity.

Employers electing to use this exemption must document that a determination has been made pursuant to the criteria outlined by the DOL and retain the records in its files.

The small business exemption does not apply to paid sick leave under the FFCRA that is not related to childcare.  For example, if an employee has COVID-19-like symptoms and is seeking a diagnosis, a small employer would not be exempt from providing emergency paid sick leave (up to 80 hours for full-time employees).

An Employee’s Prior FMLA Leave Use May Impact the Employee’s Ability to Take Expanded FMLA Leave Under the FFCRA

An employee’s ability to take expanded FMLA leave under the FFCRA depends on his or her use of FMLA leave during the 12-month FMLA leave year for a reason unrelated to COVID-19.  If an employee has already taken such leave, the employee may not be able to take the full 12 weeks of expanded FMLA leave under the FFCRA.  For example, if the employer uses the calendar year as the 12-month FMLA leave year and an employee took three weeks of leave in January 2020 for the employee’s own serious health condition, the employee would have nine weeks of expanded FMLA leave available. 

The FFCRA regulations clarify that employers are not required to respond to employees who request or use expanded FMLA leave with notices of eligibility, rights and responsibilities, or written designations that leave use counts against the employee’s FMLA leave allowances.  However, an employer that has established practices for providing individual employees with specific notice in compliance with the FMLA are recommended to apply their existing practices to expanded family and medical leave users.

Clarification on Amount of Emergency Paid Sick Leave Available to Employees

The regulations clarify how much emergency paid sick leave should be paid out to eligible full-time and part-time employees.  Eligible full-time employees are entitled to up to 80 hours of emergency paid sick leave.  An employee is considered to be full-time if the employee is normally scheduled to work at least 40 hours each workweek.  Part-time employees (those working less than 40 hours each workweek) are entitled to the number of hours of emergency paid sick leave equal to the number of hours that the employee is normally scheduled to work over two workweeks.  The regulations also set forth special calculation formulas for part-time employees who do not work a normal weekly schedule.

When an Employer Can and Cannot Require Employees to Use Paid Time Off, Accrued Vacation, or Regular Paid Sick Leave in Connection With Leave Under the FFCRA

Employers are prohibited from requiring employees requesting emergency paid sick leave under the FFCRA or expanded FMLA leave to first use paid time off (PTO), vacation, personal leave, or regular sick leave.  If an employee needs to take expanded FMLA leave, an employer can require the employee to take PTO, vacation, or personal leave concurrently with paid expanded FMLA leave. 

An employee cannot be required to take paid sick leave under expanded FMLA leave.  When PTO, vacation, or personal leave is taken concurrently with expanded FMLA leave, those other employer-paid leaves must be used to supplement the employee’s wages that are already being paid under the expanded FMLA.  Paid leave substituted during expanded FMLA does not extend the 12 weeks of expanded FMLA available.

Use of Intermittent Leave

For employees who are teleworking, employers are not required to, but may agree to permit employees to take intermittent leave under the FFCRA’s emergency paid sick leave or expanded FMLA.  In such cases, the employer is free to define the leave increment.

For (non-teleworking) employees working at their usual worksite, once an employee begins taking emergency paid sick leave because the employee is subject to (or caring for someone subject to) a quarantine or isolation order related to COVID-19, or experiencing symptoms and seeking a diagnosis, the employee must use the permitted days of leave consecutively until the employee no longer has a qualifying reason for the leave or used the full amount of emergency paid sick leave. The DOL believes that such a requirement furthers Congress’ objective to slow the spread of COVID-19.

Documentation for Requesting Leave/Recordkeeping

Employers may not require advance notice of leave; notice may only be required after the first workday (or portion thereof) for which an employee takes emergency sick leave or expanded FMLA leave.  After the first day, an employer may require notice “as soon as practicable” under the facts and circumstances. The content of the notice may be oral but must contain sufficient information for the employer to determine if the requested leave is covered by the FFCRA.

To take leave under the FFCRA, employees are also required to provide a signed statement containing certain information such as: the employee’s name, dates requested, qualifying reason for leave, and a statement that the employee is unable to work, including telework, because of a COVID-19 qualifying reason. Additional documentation is required depending on the type of leave requested.

Employers are required to retain all documentation relating to an employee’s request for leave for four years, regardless of whether the leave was granted or denied.  If an employee provided oral statements to support his or her request for emergency paid sick leave or expanded FMLA, the employer is required to document and maintain such information in its records for four years.  To claim the tax credits from the Internal Revenue Service, the employer must also maintain numerous other documents detailed in the rules.

The DOL’s regulations address many additional issues and concerns of employers.  If you have any questions about how the FFCRA affects your business and employees, our attorneys are available to provide guidance on this rapidly evolving issue.

 

This Article is one of a series of Articles Ferruzzo & Ferruzzo, LLP will be circulating to address questions from clients related to COVID-19. Ferruzzo & Ferruzzo, LLP has formed a task force to assist business owners with their needs related to COVID-19.

Authors: Jacob P. Menicucci, Esq., and Alison C. Gibbs, Esq  

 

Alison C. Gibbs, Esq. is a Senior Associate of the firm's Employment Practice Group.  Alison represents employers in a wide-range of employment-related litigation, including wage and hour defense, and defense of discrimination, harassment and retaliation claims.  Alison also regularly advises employers before litigation ever occurs, handling employment disputes and managing day-to-day employee issues, including reviewing employee handbooks policies, wage and hour compliance, leave issues, internal investigations, lay-offs, disciplinary action, terminations, severance negotiations, and other employment practices

 

 

 

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Jacob P. Menicucci

Jacob P. Menicucci, Esq. is an Associate and a member of Ferruzzo & Ferruzzo’s Employment Practices Group.  After beginning his career in employment litigation, Mr. Menicucci now counsels automobile dealership employers, and others, to ensure their policies and practices are in compliance with California's ever-changing employment laws.