Since the April 1, 2020 enactment of the Families First Coronavirus Response Act (“FFCRA”), employers have been awaiting guidance from the U.S. Department of Labor’s Wage and Hour Division. On April 6, 2020, the DOL issued final regulations implementing the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLA”), which provide paid leave for qualifying reasons having to do with the COVID-19 pandemic. Highlights of the new DOL guidance include:
Small Business Exemption
In the new regulations, the DOL has set forth specific criterial for determining when an employer with fewer than 50 employees can deny an employee paid sick leave under either the EPSLA or EFMLA. A small business may deny such leave when:
- Such leave would cause the small business’s expenses and financial obligations to exceed available business revenue and cause the small business to cease operating at a minimal capacity;
- The absence of an employee requesting leave would entail a substantial risk to the financial health or operational capacity of the business because of their specialized skills, knowledge or the business, or
- The small business cannot find other workers who are willing, able and qualified to perform the labor or services provided by the employee requesting leave, and these labor or services are required for the small business to operate at a minimal capacity.
Under these circumstances, an “authorized officer” of the employer electing to proceed under the small business exemption must document and retain the documentation in its records. CAVEAT: the small business exemption does not apply to the FFCRA’s leave requirements to employees directly affected by the virus (aka – when your employee has COVID-19). Instead, the exemption is only available where a worker is requesting time off to care for a child whose school or childcare facility has closed.
“Shelter in Place” = Qualifying Reason for EPSLA
Under the EPSLA, employers are required to provide paid sick leave to employees who are unable to work for six reasons having to do with COVID-19. As outlined in previous updates, the first of these EPSLA qualifying reasons occurs when an employee “is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.”
The new rule issued on April 6 clarifies that a “quarantine or isolation order” includes a broad range of government orders “including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” This expansive definition of what constitutes a “quarantine or isolation order” increases the number of employees who may qualify for EPSLA leave. But in order to be eligible to take EPSLA leave, an employee must be unable to work (or telework) due to the quarantine or isolation order at issue.
Intermittent Leave Limitations
The new regulations confirm that intermittent leave under both the EPSLA and the EFMLA may only be allowed if the employer agrees. Employers should document any agreement to provide intermittent leave and maintain documentation for four years.
If an employee is permitted to telework, the regulations confirm that employees who report to the worksite may only take intermittent leave if the EPSLA or EFMLA leave is solely to care for a son or daughter whose school or place of care is closed, or whose childcare provider is unavailable due to COVID-19. Otherwise, intermittent leave is not permitted. This is consistent with the objective of the new law: to prevent the spread of COVID-19.
Documentation Supporting Employee Request for Leave
Under both the EPSLA and the EFMLA, an employee must provide the employer with the following information prior to taking leave:
- Employee’s name;
- Date(s) for which leave is requested;
- Qualifying reason for leave; and
- Oral or written statement that the employee is unable to work because of a qualified reason for the leave.
Employees seeking to take EPSLA leave must also provide the name of their health care provider who advised them that they need to self-quarantine due to COVID-19.
The regulations also provide that in order for employers to claim tax credits from the IRS, employers will need to maintain documentation for four years. The IRS has issued guidance and forms that can be accessed below.
An employer must retain all records and documentation supporting the leave for a period of four years.