The Department of Labor’s Temporary Rule Regarding the Families First Coronavirus Response Act

04.06.2020

Last week, the Department of Labor (“DOL”) issued a Temporary Rule regarding paid leaves under the Families First Coronavirus Response Act (‘FFCRA”), providing much needed guidance in applying the Emergency Family Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”).  The following highlights some of the more significant portions of the DOL’s Temporary Rule, but does not provide a complete summary of the entire document.

Recording Hours Worked When Teleworking: The DOL provides guidance on recording hours worked for non-exempt employees that are teleworking during the COVID-19 pandemic.  In order to aid employers in dealing with the unique circumstances surrounding the COVID-19 pandemic, the DOL determined that an employer allowing teleworking flexibility during the COVID-19 pandemic will not be required to count all time between the first and last principal activity by an employee teleworking for COVID-19 related reasons as hours worked.  The DOL provides the following example:  “Any employee may agree with an employer to perform telework for COVID-19 related reasons on the following schedule:  7 – 9 a.m.; 12:30 – 3 p.m.; and 7 – 9 p.m. on weekdays.  This allows an employee, for example, to help teach children whose school is closed or assist the employee’s parents who are temporarily living with the family, reserving work times when there are fewer distractions.  Of course, the employer must compensate the employee for all hours actually worked – 7.5 hours – that day, but not all 14 hours between the employee’s first principal activity at 7 a.m. and last at 9 p.m."

Defining a Quarantine or Isolation Order: The DOL clarified what constitutes a quarantine or isolation order for application of the EFMLEA and the EPSLA.  Such 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.  The DOL further explained that an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking.  The question is whether the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order.  An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee.

Teleworking: The DOL reiterates that, to qualify for either the EFMLEA or the EPSLA, an employee must be unable to work or telework.  The DOL explains that an employee is able to telework if (a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from a non-worksite location; and (c) there are no extenuating circumstances that prevent the employee from performing that work.

Experiencing Symptoms of COVID-19 and Seeking a Medical Diagnosis: One of the circumstances under which an employee may qualify for the EPSLA is if he or she is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.  The DOL explained that paid sick leave taken for this reason 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, including time spent making, waiting for, or attending an appointment for a test for COVID-19.  However, the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.  Waiting for the results of a test does not qualify for the EPSLA if the employee is able to telework.  Again, an employee is able to telework if: (a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from a non-worksite location; and (c) there are no extenuating circumstances that prevent the employee from performing that work.

Leave to Care for a Child: An employee may take leave to care for his or her child under the EFMLEA or the EPSLA only when the employee needs to, and actually is, caring for his or her child.  Generally, 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.

Defining “Emergency Responder”: The DOL provides guidance with respect to who qualifies as an “emergency responder” for purposes of exclusion from the EFMLEA and the EPSLA.  It is important to note that the DOL indicates that it will interpret “emergency responder” broadly.

The DOL includes the following broad categories of personnel as emergency responders: 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 our communities and of our Nation; (3) have specialized training relevant to emergency response; and (4) provide essential services relevant to the American people’s health and wellbeing.

Recognizing that it could not provide a list that was fully inclusive or that accounted for the differing needs of specific communities, the DOL indicates that it will also allow for the highest official of a state or territory to identify other categories of emergency responders, as necessary.

To further clarify who is included as an emergency responder, the DOL lists a number of positions that it includes within these categories:  “This includes but is not limited to 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 and whose work is necessary to maintain the operation of the facility.”

Application of the EFMLEA and the EPSLA to Public Entities: The DOL confirmed the application of the EFMLEA and the EPSLA to public entities, which is defined as the U.S. Government; the government of a State or political subdivision of a State; or any agency of the United States, a State, or a political subdivision of a State; or any interstate governmental agency.  The DOL emphasized that all public agencies must comply with both the EFMLEA and the EPSLA regardless of the number of employees they employ, although such employers may exclude employees who are health care providers or emergency responders.

Intermittent Use of Leave Under the EFMLEA or the EPSLA: The DOL confirmed that there are circumstances where either the EFMLEA or the EPSLA may be used intermittently.

• First and foremost, the employer and employee must agree to such an arrangement.  Without an agreement, no leave under the FFCRA may be taken intermittently.
• Second, where an employer and employee agree that the latter may take leave intermittently, they also must agree on the increments of time in which leave may be taken.
• Third, if an employer directs or allows an employee to telework, subject to an agreement between the employer and employee, the employee may take leave intermittently, in any agreed increment of time, while the employee is teleworking.  However, employees who continue to report to an employer’s worksite may only take leave intermittently and in any increment – subject to the employer and employee’s agreement – in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite.

Counting Intermittently Used Leave: Where an employer and employee have agreed that FFCRA leave may be taken intermittently, only the amount of leave actually taken may be counted toward the employee’s leave entitlement.

Previously Used FMLA Leave: The DOL explained that, where an employee has already taken some FMLA leave in the current twelve-month leave year, the maximum twelve weeks of EFMLEA leave is reduced by the amount of FMLA leave entitlement already taken in that year.

Use of Other Accrued Leave to Supplement: Because there is a portion of the EFMLEA that is paid, the FMLA provision for substitution of the employee’s accrued paid leave is inapplicable, and neither the employee nor the employer may require the substitution of paid leave.  However, employers and employees may agree, where Federal and state law permits, to have accrued paid leave supplement the two-thirds pay under the EFMLEA so that the employee receives the full amount of their normal pay.

Documentation in Support of Leave Requests: The DOL does allow for the collection of documentation supporting the need for leave.

An employee must provide his or her employer documentation in support of EFMLEA or EPSLA leave.  Such documentation must include a signed statement containing the following information:  (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.

An employee must provide additional information depending on the COVID-19 qualifying reason for leave:

• First, an employee requesting paid leave because he or she is under a quarantine or isolation order must provide the name of the government entity that issued order to which the employee is subject.
• Second, an employee requesting paid sick leave because his or her health care provider issued a self-quarantine order for COVID-19 related reasons must provide the name of the health care provider who issued the order.
• Third, an employee requesting paid sick leave to care for an individual who has either been issued a quarantine or isolation order by a government entity or a self-quarantine order for COVID-19 related reasons by a health care provider must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request.
• Fourth, an employee requesting to take leave to care for his or her child must provide the following information:  (1) the name of the child being cared 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.
• Fifth, for leave taken under the FMLA for an employee’s own serious health condition related to COVID-19, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply.

Continued Group Health Plan Coverage: An employee who takes EFMLEA or EPSLA leave is entitled to continued coverage under the employer’s group health plan on the same terms as if the employee did not take leave.

If you have questions or concerns about meeting the requirements of the DOL’s Temporary Rule or implementing its guidance, then please contact the authors of this article or the other attorneys at AALRR to assess your legal options in your particular circumstances.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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