DOL Issues “Temporary Rule” Interpreting FFCRA
Late Wednesday, the United States Department of Labor (DOL) issued regulations (termed a “temporary rule” by the DOL) interpreting the Families First Coronavirus Response Act (FFCRA). The new rule sheds some additional light on how employers are to administer the FFCRA.
Documentation of Need for Leave
While the DOL has not provided a certification form (as we hoped it might), the regulations provide more detail about the documentation employees must provide in support of paid sick leave or expanded family and medical leave. According to the regulations, the documentation must include a signed statement containing the following information:
- the employee’s name;
- the date(s) for which leave is requested;
- the COVID-19 qualifying reason for leave; and
- a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
Depending on the COVID-19 qualifying reason for leave, the employee must provide additional information as follows:
- An employee requesting paid sick leave because he/she is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.
- An employee requesting paid sick leave because he/she has been advised by a health care provider to self-quarantine related to COVID-19 must provide the name of the health care provider who advised him/her to self-quarantine for COVID-19 related reasons.
- An employee requesting paid sick leave to care for an individual 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.
- An employee requesting to take paid sick leave or expanded family and medical leave to care for his/her child must provide the following information for school closure or childcare reasons: (1) the name of the child being cared for; (2) the name of the school, place of care, or childcare 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. The DOL previously advised that employers could ask for evidence that the school or childcare provider is closed. For more information, see our prior alert.
- 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.
Relief for Small Businesses
The new rule provides additional clarity around the process by which a small business claims exemption from the requirements to provide leave under FFCRA related to unavailability of childcare or school closures. According to the DOL, a small employer (one with fewer than 50 employees) is exempt from the requirement to provide this type of leave under FFRCA when:
- the leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
- the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
- the small 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 small employer to operate at a minimal capacity.
However, these reasons do not give the employer a blanket exemption. Rather, the employer may deny leave under FFCRA only to those otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively. If a small employer decides to deny FFCRA leave to an employee or employees for these reasons, the small employer must document the facts and circumstances that meet the criteria above to justify the denial. The employer should not submit the documentation to the DOL but should retain the records for its own files.
In other words, the employer implements the exemption on its own, based on a good faith, objective assessment of its situation. If the employer denies leave to an employee and the employee challenges the denial (most likely by filing a complaint with the DOL or filing a lawsuit), the employer will need to support its decision with this analysis and accompanying documentation.
The DOL has made clear that, in all situations where employees seek to take their paid sick leave or expanded family and medical leave intermittently, the employer and the employee must agree both that the time may be taken intermittently and the increments of time in which it may be taken. According to the DOL, there must be a “clear and mutual understanding between the parties that the employee may take intermittent paid sick leave or intermittent expanded family and medical leave, or both.” Therefore, while the regulations do not require employer and employee to reduce the agreement to writing, it probably makes sense to do so.
Government Stay-at-Home and Shutdown Orders
An often asked – but heretofore difficult to answer – question has been trying to determine whether an employee is “subject to a Federal, State or local quarantine or isolation order” – the first qualifying reason for leave under the Emergency Paid Sick Leave Act (EPSLA) – if they are covered by a government stay at home or shutdown order. The new DOL rule states that a quarantine or isolation order broadly includes “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders” that cause the employee to be unable to work even though the employer has work for them.
Notably, however, the DOL states than an employee may take Emergency Paid Sick Leave (EPSL) for this reason only if, “but for being subject to the order,” the employee would be able to perform work that is otherwise available. By contrast, an employee subject to a quarantine or isolation order may not take EPSL where the employer does not have work for the employee as a result of the order or other circumstances. This is because the employee would be unable to work even if they were not required to comply with the quarantine or isolation order.
In the example given by the DOL, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, an employee subject to a quarantine or isolation order is not eligible for EPSL because their inability to work is not due to the need to comply with a stay-at-home order, but rather due to the closure of the place of employment. Importantly, the DOL also states that this is true even if the closure of the business is directly related to a government order forcing the coffee shop to close. Therefore, the employee in that situation would not be eligible for EPSL under this qualifying reason. As the DOL explains, the key question in this analysis is “whether the employee would be able to work or telework ‘but for’ being required to comply with a quarantine or isolation order.”
Amy McAndrew, Esquire
Director of Member Legal Services
MidAtlantic Employers’ Association
*This Alert is provided for general informational purposes only and does not constitute legal advice.