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DOL Rolls Out FFCRA Regulations as New Leave Requirements Go Into Effect DOL Rolls Out FFCRA Regulations as New Leave Requirements Go Into Effect

DOL Rolls Out FFCRA Regulations as New Leave Requirements Go Into Effect

On April 1, 2020—the same day the requirements of the Families First Coronavirus Response Act (“FFCRA” or “Act”) went into effect—the U.S. Department of Labor (“DOL”) issued its regulations implementing the FFCRA (“Regulations”), along with a lengthy commentary explaining and expanding upon the DOL’s interpretation of the Act set forth in previously published informal guidance. The Regulations contain some new guidance on issues that have remained unresolved since the passage of the FFCRA, as well as additional confirmation of points the DOL addressed (and revised) in the previously published Q&A formatted guidance. Unfortunately, several issues important to employers attempting to implement the FFCRA remain unclear, and in at least one instance, the Regulations appear to be self-contradictory and/or clearly inconsistent with the language of the Act itself.  
The following is an overview of some of the more notable issues addressed in the Regulations. Additional in-depth analysis of key issues (such as telework, the calculation of paid leave due under the FFCRA, and documentation requirements) will follow. As we have done with our previous coverage of the DOL Q&As, we will continue to keep you posted on any further revisions to the DOL’s informal guidance and the Regulations.
Qualifying Reasons for Leave. The Regulations provide additional explanation as when employees meet one of qualifying reasons for leave under the FFCRA.[1]

Subject to a quarantine or isolation order. Consistent with prior DOL guidance, the Regulations provide that an employee can only take paid sick leave for this reason if: (1) the employer has work for the employee; and (2) the quarantine or isolation order prevents an employee from performing the work (or telework). Therefore, an employee subject to a quarantine or isolation order may not take paid sick leave where the employer does not have work for the employee as a result of that order. “Quarantine or isolation orders” include quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any federal, state, or local government authority.
Advised by a health care provider to self-quarantine. An employee may take paid sick leave for this reason only if the employee is unable to work (or telework) because a health care provider advises the employee to self-quarantine based on a belief that the employee has or may have COVID-19, or the employee “is particularly vulnerable” to COVID-19.
Seeking medical diagnosis for COVID-19. An employee may take paid sick leave for this reason if the employee is experiencing COVID-19 symptoms (e.g., fever, dry cough, shortness of breath) and is seeking a medical diagnosis. This 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 or attending an appointment for COVID-19. An employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.
Caring for an individual subject to a quarantine or isolation order or who has been advised by a health care provider to self-quarantine. The Regulations help employers understand who qualifies as an “individual” for the purpose of this form of leave. An employee may take paid sick leave for this reason only if the employee is caring for an individual: (1) with whom the employee has a personal relationship; and (2) is the employee’s immediate family member, a person who regularly resides in the employee’s home, 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 were quarantined or self-quarantined.”

Caring for a son or daughter whose school or place of care has been closed, or whose childcare provider is unavailable, for reasons related to COVID-19. An employee may only take paid sick leave or expanded family medical leave for this reason if no other suitable individual—such as a co-parent, co-guardian, or the usual childcare provider—is available to care for the child during the period of leave. While this “no other suitable individual” rule provides some limitation on the eligibility for leave, the Regulations simultaneously expand the FFCRA’s definitions of “son or daughter” and “childcare provider.”

“Son or Daughter”: Consistent with its prior guidance, the DOL has taken the position that a “son or daughter” does not necessarily have to be a minor. The Regulations adopted the definition of “son or daughter” from the FMLA to mean a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is: (A) under 18 years of age; or (B) 18 years of age or older who is incapable of self-care because of a mental or physical disability.

“Childcare Provider”: The Regulations also expand who can be considered an eligible childcare provider under the FFCRA to include a family member or friend, such as a neighbor, who regularly cares for the employee’s child. According to the Regulations, such childcare providers need not be compensated or licensed. This expanded definition contradicts the FFCRA’s statutory definition of childcare provider—“a provider who receives compensation for providing childcare services on a regular basis.
Telework. The Regulations provide additional clarification on its definition of the term “telework” and the circumstances under which an employee is available (or unavailable) for purposes of leave eligibility, as well as the interaction between the treatment of telework under the FFCRA and the Fair Labor Standards Act’s (“FLSA”) rules regarding the determination of compensable hours for the purposes of minimum wage.

Amount and Calculation of Paid Leave. The Regulations and commentary provide in-depth interpretation of how paid leave is to be calculated under both the FMLA Expansion Act (“EFMLA”) and Emergency Paid Sick Leave Act (“EPSLA”) portions of the FFCRA, addressing both the number of hours and hourly pay rate applied for each purpose. The particulars of such calculations, which require lengthy explanation, will be addressed in a future publication. In the meantime, the following are some of the particularly notable items addressed by the Regulations:

Substitution of Paid Leave. Under previous guidance, the DOL took the position that, when it came to the unpaid and partially unpaid leave available under EFMLA, an employer could not, under any circumstances, require an employee to substitute other employer-provided paid leave to cover the initial two unpaid weeks (10 days) of EFMLA, nor the portion of the employee’s regular pay beyond the 2/3 pay provided for the following 10 weeks of EFMLA. Unfortunately, the regulations create further confusion over this issue. While the Regulations are consistent in stating that an employer cannot require an employee to use other paid leave to cover the first two weeks of unpaid EFMLA leave, the Regulations take plainly contradictory positions on whether an employer can require the use of paid leave to cover the unpaid portion of the last 10 weeks. Hopefully, the DOL will provide further clarification.
Ten Days vs. Two Weeks. With respect to EFMLA, the Regulations clarify that the initial 10 unpaid days of leave covers the same length of time as the two weeks of paid leave available under EPSLA, resolving an apparent tension resulting from the Act’s inconsistent use of “days” versus “weeks.”
Calculation of “Regular Rate.” For the most part, the Regulations and commentary concerning the calculation of the employee’s pay rate rely upon principles of the “regular rate” calculation used to determine overtime premiums under the FLSA. However, the Regulations make clear that a “regular rate” calculation for purposes of EFMLA and EPSLA contains some significant distinctions from FLSA calculations. Because overtime under the FLSA is paid on a workweek-by-workweek basis, the FLSA regular rate calculation is generally conducted on a workweek basis, whereas the FFCRA calculation takes into account lookback periods of up to six months.

Employee Eligibility for Leave. The Regulations are largely consistent with prior guidance as to the eligibility of individual employees to take leave under the FFCRA, providing additional confirmation on several issues addressed in the DOL’s Q&As:

Employees Rehired or Reemployed. The Regulations provide further confirmation that an employee who is rehired or otherwise reemployed on or before December 31, 2020, after being laid off or terminated after March 1, 2020, will be eligible for EFMLA leave, if such employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date on which the employee had been laid off or otherwise terminated. The DOL’s commentary provides the following example of the application of this rule:

For example, an employee who was originally hired by an employer on January 15, 2020, but laid off on March 14, 2020, would be eligible for leave under the EFMLEA and the EPSLA, if the same employer rehired the employee on October 1, 2020.
Healthcare Providers and Emergency Responders. The Regulations confirm that the range of employees whom an employer may choose to exempt from eligibility for leave because such employees are “health care providers” or “emergency responders” is much broader than existing definitions under the FMLA. These categories include employees who (in the case of health care providers) do not provide any direct care and (in the case of Emergency Responders) include employees whose duties do not directly involve traditional public safety or emergency medicine, such as public works employees and social workers.
Employer Coverage. As with the employee eligibility standards discussed above, the Regulations largely track previous DOL guidance on employer coverage, while providing some additional detail. Key issues of interest include the following:

500 Employee Threshold. The Regulations provide additional confirmation that the 500 employee threshold is measured at the time an individual employee requests leave, and therefore an employer’s coverage status is subject to change. For example, if an employer has 501 employees on April 1, 2020, it would not be required to provide FFCRA leave to an employee who requests leave on that date. However, if that same employer conducts a reduction in force, resulting in an employee count of 450 on May 1, 2020, it would be obligated to grant (an otherwise valid) request for FFCRA leave made at that time.
Small Business Exemption. Small businesses—i.e. businesses with fewer than 50 employees—may be exempt from the leave provisions of the FFCRA related to childcare (not the other qualifying reasons for leave) if an officer of the company determines that providing the required leave to an employee or employees would result in one of three effects on the company’s ability to maintain minimal operations or financial health. The Regulations include a list of the factors, which are similar to the ones the DOL previously published in its Q&As, with some subtle changes. Small business employers should look for our separate summary of this exemption, which will be published shortly.

Intermittent Leave. Pursuant to the Regulations, and consistent with prior guidance from the DOL, employers may permit employees who are teleworking or taking leave to care for a child to take intermittent leave for the reasons that qualify under the FFCRA only if the employee and employer agree. Employers are not required to do so. Employees working at the usual worksite may not take intermittent leave if taking paid sick leave for any of the qualifying reasons related to COVID-19 other than caring for a child because the child’s school or place of care has been closed or is unavailable due to COVID-19 precautions. As with traditional FMLA leave, the calculation of leave usage and corresponding pay may be challenging when the leave is taken intermittently.
Poster Requirement. The Regulations reiterate the requirement for employers to post, in a conspicuous place, electronically, and/or by mail/e-mail, a notice related to the leaves provided by the FFCRA and the procedures for filing complaints alleging violations of the FFCRA.  Employers now have a choice, however, to post either the poster prepared by the DOL or their own version of the poster, so long as it contains, at minimum, the information on the DOL’s poster.
Restoration to Position. As is the case with all FMLA leaves, the employer must restore an employee to the same or equivalent position when the employee returns from either form of leave under the FFCRA. Importantly, this restoration requirement only applies if the position would still exist if the employee had not taken leave. An employee is not protected from a layoff or other employment action that would have occurred regardless of the leave. The key employee exemption to restoration also applies to EFMLA leave under the FFCRA.
Documentation and Recordkeeping. The Regulations include substantial guidance related to the information an employer should, and often must, obtain from an employee requesting leave. Somewhat surprisingly, the Regulations do not mention specific documentation, such as a copy of the doctor’s order or advice to quarantine or isolate. The records that are required must be retained by the employer for a period of four years. Watch for an upcoming article providing more detail related to these employer documentation obligations.
Employees Who Change Employers. One unexpected part of the Regulations is a provision noting that an employee is only entitled to up to 80 hours of leave under the EPSLA, regardless of the number of employers for whom the employee works between April 1 and December 31, 2020. In other words, if an employee takes a portion of the EPSLA leave while working with one employer and then changes employers, the second employer only needs to provide the remainder of the leave to the employee, not the full 80 hours (or, if part-time, what the employee would have worked in a 14-day period). This provision raises many practical and legal questions that will need to be considered further. For example, if an employee hired within this time period asks for leave, does the employer need to ask the employee how much leave, if any, the employee took with a prior employer or employers? If the employer does not ask, or if the employee is dishonest in his or her response, can the second employer still take a tax credit for leave provided to the employee that exceeds the combined total of 80 hours taken by the employee? This provision, while likely well-intended to avoid multiple tax credits for the same hours paid, may place an impractical burden on employers and governmental agencies tasked with enforcing the FFCRA. 
We will continue to monitor future guidance from the DOL and other legislation that may affect employers during this challenging time. If you have questions, please contact Manolis BoulukosTami Earnhart, or Kayla Ernst, or any other member of our Labor, Employment & Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
[1] The only qualifying reason the DOL did not expand upon is an employee having a “substantially similar condition, as specified by the Secretary of Health and Human Services, in conjunction with the Secretary of the Treasury and Secretary of Labor.” The DOL also did not explain its lack of additional direction on this qualifying reason or whether we should expect additional guidance.
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