DOL issues regulations under the FFCRA regarding newly mandated coronavirus sick- and FMLA- leave

The DOL has issued regulations implementing the FFCRA’s newly mandated coronavirus sick- and FMLA-leave. The regulations address many topics, including the following highlights. Look for additional information as the new regulations are analyzed.

• The definition of “Telework,” which includes the statement that an employee is not “able to Telework” if there are any “extenuating circumstances (such as serious COVID-19 symptoms) that prevent
  the Employee from performing that work” (parenthetical in original), sec. 826.10.
• A flesh-out of each of the six reasons that qualify for the new paid coronavirus sick leave, sec. 826.20. This includes specifically with regard to reason 4 (“seeking medical diagnosis for COVID-19”) that the employee need merely be “experiencing any of the” recognized symptoms of COVID-19, which be only a “dry cough.” However, leave is limited to the time the employee is ” unable to work because the Employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.”
• The DOL also clarified in sec. 826.20(b), and especially in its prefatory language explaining that new regulatory language, that both the new coronavirus sick- and FMLA- leaves will be available when a parent is needed to care for a child who is under 18 years old or (clarifying what had seemed language in the new law that contradicted the actual FMLA) who is “18 years of age or older and incapable of self-care because of a mental or physical disability.”
• How the amount of coronavirus sick- and FMLA- leave should be calculated, and how pay for the same should be calculated, sec. 826.21-.25.
• How eligibility for the new coronavirus FMLA-leave is determined. As previously noted, the new coronavirus sick leave is available to all employees of a covered employer, while the new coronavirus FMLA leave is available only to employees who have been on payroll for at least 30 calendar days. Sec. 826.30 explains how that is to be calculated.
• How employees are to be counted to determine if the employer is covered, i.e., if the employer employers fewer than 500 employees, sec. 826.40. All employees are to be counted. One part-time employee counts as one employee (not 1/2 for example). Employees who work for the company count even if they also count as employees of a Joint Employer. Likewise, true independent contractors are not counted. Employees of affiliated entities generally will count towards their actual employer (not its affiliate), again absent joint-employer status.
• Sec. 826.40 also explains that the small business exemption available to employers of fewer than 50 is available, upon self-certification (that must be documented, preserved but not filed with DOL unless requested) by “an authorized officer of the business” that:

(i) The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA 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;

(ii) The absence of the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA 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

(iii) 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 or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.

• How intermittent leave will work and that, unlike regular FMLA leave, intermittent leave for both the new coronavirus sick- and FMLA-leaves will be available ” only if the Employer and Employee agree. The Employer and Employee may memorialize in writing any agreement under this section, but a clear and mutual understanding between the parties is sufficient.” Sec. 826.50. Also that these new leaves are available to an employee who has been offered Telework “only when the Employee is unavailable to Telework because of a COVID-19 related reason” (see also above regarding the definition of Telework).
• Sec. 826.60 provides for the two new leaves to run concurrently in certain situations, if both are needed, with the new coronavirus sick leave being used first, and an employee who exhausts these paid leaves may choose, but not be required to substitute other paid leave to cover the unpaid portion of any gap.
• Sec. 826. 90 explains the types of notice that an employee can be required to give, which include rules generally prohibiting the requirement of notice sooner than “after the first workday (or portion thereof) for which an Employee takes” the new leave (parenthetical in original) and requiring an employer to give notice and an opportunity to provide required documentation prior to denying the request for leave. For example sec. 826.90 provides, as follows:

 Notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave or Expanded Family and Medical Leave. After the first workday, it will be reasonable for an Employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for notice to be given by the Employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the Employee is unable to do so personally.

• Sec. 826. 100 provides further explanation of the kinds of documentation that can be required for particular types of leave needed.

 826.100 Documentation of Need for Leave.

(a) An Employee is required to provide the Employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA [sick leave] or Expanded Family and Medical Leave under the EFMLEA:

(1) Employee’s name;

(2) Date(s) for which leave is requested;

(3) Qualifying reason for the leave; and

(4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.

(b) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(i), an Employee must additionally provide the Employer with the name of the government entity that issued the Quarantine or Isolation Order.

(c) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(ii) an Employee must additionally provide the Employer with the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19.

(d) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(iii) an Employee must additionally provide the Employer with either:

(1) the name of the government entity that issued the Quarantine or Isolation Order to which the individual being care for is subject; or

(2) The name of the health care provider who advised the individual being cared for to self quarantine due to concerns related to COVID-19.

(e) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(v) or Expanded Family and Medical Leave, an Employee must additionally provide:

(1) the name of the Son or Daughter being cared for;

(2) the name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and

(3) a representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave.

(f) The Employer may also request an Employee to provide such additional material as needed for the Employer to support a request for tax credits pursuant to the FFCRA. The Employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. For more information, please consult https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided
by-small-and-midsize-businesses-faqs.

• Sec. 826.130 guarantees the worker a “right to be restored to the same or an equivalent position” if the job still exists, in other words, the section also clarifies that the “Employee is not protected from employment actions, such as layoffs, that would have affected the Employee regardless of whether he or she took leave. In order to deny restoration to employment, an Employer must be able to show that an Employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.” The section also recognizes that very small employers of fewer than 25 employees (see above regarding counting) may be protected by an exemption from the restoration obligation subject to four conditions set forth in sec. 826.130(b)(3).
•  Sec. 826.140 details recordkeeping requirements for four years.