A Refresher on the DOL’s Guidance for FMLA & Sick Leave

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A Refresher on the DOL’s Guidance for FMLA & Sick Leave

As the COVID-19 pandemic continues to sweep the country (and quarantine orders continue to be issued by state and local governments), workplaces have been faced with a swiftly changing regulatory landscape, at times leading to confusion and frustration. In particular, employers continue to have questions regarding provisions for FMLA and sick leave under recent federal assistance legislation. Here is a brief refresher on current leave provisions, and responses to some commonly asked questions.

On April 1, 2020, the U.S. Department of Labor (DOL) issued a new action regarding implementation of the Families First Coronavirus Response Act (FFCRA), which provides paid sick leave for health emergencies relating to the coronavirus pandemic. Specifically, the FFCRA created amendments to the Family and Medical Leave Act, known as the Emergency Family and Medical Leave Expansion Act (EFMLEA), and created a federal paid sick leave law under the Emergency Paid Sick Leave Act (EPSLA).

The temporary DOL rule, adopted to administer the FFCRA’s requirements, is effective from April 2, 2020 through December 31, 2020. The new Acts provide paid and unpaid leave to an employee for certain COVID-19-related reasons. Specifically, the EPSLA provides:

  • Up to 80 hours of paid leave (at the full rate of pay) for an employee experiencing COVID-19 symptoms and seeking medical attention, or subject to a quarantine order (by a government entity or the advice of a health care provider).
  • Up to 80 hours of paid leave (at two-thirds of the employee’s regular rate of pay) if someone for whom the employee provides care is subject to a government quarantine order or has been advised by a health care provider to self-quarantine.
  • Up to 80 hours of paid leave (at two-thirds of the employee’s regular rate of pay) for an employee caring for a son or daughter whose school or care provider is closed or unavailable for reasons related to COVID-19.

Similar to the requirements of EPSLA, the EFMLEA requires that certain employers provide up to 10 weeks of paid (at two-thirds of the employee’s regular rate of pay), and 2 weeks of unpaid, emergency family/medical leave when an employee is caring for a son or daughter whose school or care provider is closed or unavailable for reasons related to COVID-19. Employees are permitted to utilize other accrued and unused paid leave to supplement pay under the Acts. Following leaves under the Acts, in most instances, employees are entitled to be restored to the same or an equivalent position upon their return to work.

Notably, employers that are not usually required to provide leave under FMLA must provide leave under the Act; employees that would not normally qualify for FMLA leave are eligible for such leave, too. There are limited exceptions, however, but an employer must make determinations very carefully to ensure that it does not run afoul of the regulations.

Below are answers to questions we have fielded for our clients (both employees and employers) in relation to the new laws.

I am an employee. Am I eligible for leave?

In contrast to the requirements of FMLA, all employees of covered employers are eligible for two weeks of paid sick time for the COVID-19-related reasons specified in the EPSLA. The EFMLEA provides employees on an employer’s payroll for at least 30 days (regardless of the number of days actually worked) with up to an additional 10 weeks of paid family leave to care for a child whose school or care provider is unavailable due to COVID-19. Healthcare workers and emergency responders may be excluded from the requirements of the Acts (because of their necessary services) at the employer’s election. The DOL has a helpful tool to determine employee eligibility found here.

Am I a “covered employer” required to provide paid leave under FFCRA?

Most government agencies and private employers—including for-profit, not-for-profit, and religious organizations—with fewer than 500 employees in the aggregate must provide leave under EFMLEA and EPSLA. Employees are counted as of the date the employee requests leave. (To determine how to count employees for purposes of the laws, see Questions 1–3 of the FAQ provided by the DOL here.) Exercise caution when denying leave if your employee count is close to 500. An employer eligibility tool is expected from the DOL shortly.

Are small employers required to provide leave under EFMLEA and EPSLA?

Most likely, yes. Notably, employers that are generally not subject to FMLA leave requirements are now obliged to provide leave under EFMLEA and EPSLA. There are some exceptions, however: small employers (defined as having less than 50 employees) may not have to provide employee leave requested as a result of school or childcare unavailability if they can show one of the following:

  • Providing such leave would "result in the small business' expenses and financial obligations exceeding available revenues" such that the business would cease to operate.
  • The absence of the employee requesting leave would create a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, business knowledge, or responsibilities (i.e., the person is a key employee in the organization).
  • There are not enough workers who are able, willing, or qualified to perform the services needed to make up for the work performed by the employee requesting leave, and such services are required for the business to operate at minimal capacity.

Employers utilizing these exceptions must document their reasons and maintain records of them for four (4) years. Again, this exception is only with regard to leave necessary to care for one’s children due to the unavailability of school or care providers.

What are the notice or posting requirements under EFMLEA and EPSLA?

Much like other employee-related regulations, the FFCRA requires eligible employers to maintain notices (approved by the Secretary of Labor) regarding the Acts in a conspicuous location. An employer may post the notice on its employee intranet, send it by mail, or email it to employees who are teleworking.

The Department of Labor continues to provide updates regarding the administration of these new laws. Additionally, Congress is considering amendments that may expand the breadth and application of the laws. Contact us today for up-to-the-minute advice, and for answers to the more complex questions presented by these laws and regulations.