DOL Provides Regulatory Guidance Via Temporary Rule
On April 1, 2020,—the very day the paid leave requirements in the Families First Coronavirus Response Act became effective—the Department of Labor (DOL) provided much-anticipated regulatory guidance. The DOL did so by providing regulations via an immediately effective “temporary rule,” which implements both the Emergency Paid Sick Leave Act (“Sick Leave Act”) and the Emergency Family and Medical Leave Expansion Act (“FMLA Expansion Act”).
The DOL has now addressed, if not answered outright, many questions stymieing employers as they have prepared to comply with these new laws. Many of the regulations track the DOL’s guidance from the past two weeks, which we’ve previously covered in three separate alerts posted on our COVID-19 Insight Center. While our analysis of the regulations is continuing and will be further refined, we believe that the below important points should be quickly communicated to guide employers who are already facing requests for paid leave.
Here are our key initial takeaways from the just-issued regulations:
- The definitions in the FMLA apply to terms that were not otherwise defined in the FMLA Expansion Act.
- Can you clarify the compensation period for teleworking? Employees must be compensated for actual time spent teleworking rather than all time between the first and last activities, which is a deviation from the DOL’s “continuous workday rule.”
- What is a “quarantine or isolation order” that would entitle an employee to paid sick leave? The Paid Sick Leave Act entitles employees to paid sick leave if they are unable to work or telework as a result of being subject to a federal, state, or local quarantine or isolation order. The DOL regulations clarify that this includes “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.” But the regulations also explain that paid sick leave is available to an employee “only if being subject to one of these orders prevents him or her from working or teleworking as described therein.” The key question therefore is “whether the employee would be able to work or telework ‘but for’ being required to comply with a quarantine or isolation order.”
- When is an employee “able” to telework? As the regulations explain, an employee is able to telework when “(a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work.”
- What would justify self-isolation? An employee may take leave when advised to self-isolate when a health care provider believes that the employee “has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.”
- Which “individuals” may an employee take paid sick leave to care for? According to DOL, the list includes “an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.”
- What if there is another parent at home for child care purposes? This has been a key question for employers—particularly situations in which both parents may be at home and able to care for a child whose school or place of care is closed. The DOL has explained that “an employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for his or her child.” The DOL has further explained that, in general, “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.”
- What are full-time and part-time employees? A full-time employee is an employee who works at least 80 hours over two workweeks, or at least 40 hours each workweek. On the other hand, a part-time employee is an employee who is normally scheduled to work fewer than 40 hours each workweek or—if the employee lacks a normal weekly schedule—who is scheduled to work, on average, fewer than 40 hours each workweek.
- Does paid employer-provided leave run concurrently with paid FMLA? The regulations specify that, for leave taken under the FMLA Expansion Act, an employee can elect to use, or an employer may require the employee to use, accrued leave that under the employer’s policies would be available to the employee to care for a child, such as vacation or personal leave or paid time off concurrently with paid FMLA under the FMLA Expansion Act. This would serve the purpose of allowing the employee to receive full pay during the leave period (2/3 pay required under the FMLA Expansion Act, and an additional 1/3 pay from accrued but unused employer-provided leave).
- What about paid sick leave for child care and paid FMLA running concurrently? The DOL definitively stated that paid sick leave under the Sick Leave Act and paid FMLA under the FMLA Expansion Act run concurrently. To that end, the DOL regulations modified the Act to provide that the first two weeks of expanded FMLA may be unpaid, rather than the first 10 days. This was done to ensure clarity that the paid sick leave and expanded FMLA for child care purposes are essentially one and the same.
- How do you determine the employee’s regular rate? For purposes of determining the employee’s regular rate under both the Sick Leave Act and FMLA Expansion Act, the DOL states that employers must compute the average of the employee’s weekly regular rate for the six-month period ending on the first day the employee takes leave under either Act or the entire period of employment, whichever is less.
- How do you measure the number of employees? This will include employees as of the date on which the employee would take leave under either Act. In this count are full-time and part-time employees, employees on leave of any kind, temporary employees who are jointly employed under the FLSA, and day laborers, but does not include independent contractors.
- How do we define “health care provider” and “emergency responder”? Those terms remain broadly defined, as reported in our prior guidance, Important Additional Guidance from DOL for Leave Effective April 1. Health care provider, again, expressly includes all employees of the health care facility, office, or practice.
- When can an employee take intermittent leave? Only with respect to leave for child care purposes, employers and employees may agree that leave may be taken on an intermittent basis in any agreed amount of time. Absent agreement, no leave may be taken intermittently.
- How do employers give proper notice? Employers must post the “model notice” published by DOL, but they are not required to adhere to any “special notice” obligations as are applicable under existing FMLA regulations.
- How must the need for leave be documented? To take leave under either the Sick Leave Act or FMLA Expansion Act, the employee must first provide the following information:
- Employee’s name;
- Date(s) for which leave is requested;
- Qualifying reason for the leave; and
- Oral or written statement that the employee is unable to work because of the qualified reason for leave.
This information must also include information related to the qualifying reason, such as the name of the governmental entity that issued the isolation order, the health care provider who advised self-isolation, the individual for whom the employee is caring, or the school that is closed.
- What are the recordkeeping obligations? The regulations require employers to retain the above-listed leave-related documentation for four years, regardless of whether leave was granted or denied.
- How do we get those tax credits? To claim the tax credits under each Act, the employer must retain:
- Documentation concerning the determination of how much leave under each Act was paid to employees
- Documentation regarding the qualified health plan expenses allocation related to such wages
- Copies of completed IRS Form 7200
- Copies of IRS Form 941
- Other documents as specified by the IRS
- What about paid leave taken before the Acts became effective? Employees are entitled to take the full amount of leave available to them under the Sick Leave Act and FMLA Expansion Act, even if the employer provided paid leave that was taken before the Acts became effective.
Our Chambliss team continues to monitor legal developments in connection with the COVID-19 pandemic. Please contact Jim Catanzaro, Justin Furrow, or your relationship attorney if you have questions or need additional information.
Visit our COVID-19 Insight Center for our latest legislative and legal updates, articles, and resources.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings, and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. In some cases, the underlying legal information is changing quickly in light of the COVID-19 pandemic. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship. Please contact your legal counsel for advice regarding specific situations.