The Wage and Hour Division of the U.S. Department of Labor (DOL) has issued guidance that provides answers to commonly asked questions that have resulted from the enactment of the Families First Coronavirus Response Act (the Act). The DOL has also published temporary regulations to provide more details of the Act. Our continuing updates provide summaries of the evolving DOL Q&As and accompanying regulations.
Highlights of the cumulative DOL guidance and regulations include the following:
- Effective Date of the Act. The Act took effect on April 1, 2020 (the Effective Date) and will apply to leave taken between then and December 31, 2020.
- Retroactivity of the Act. Leave benefits under the Act are not retroactive, meaning they do not apply to leave taken prior to the Effective Date. Moreover, any company-provided paid leave taken by an employee prior to the Effective Date does not count against the leave entitlement for eligible employees provided under the Act.
- Calculating the Employee Threshold. The Act applies to employers with fewer than 500 employees in the U.S. or U.S. territories. This threshold should be calculated by counting all full-time and part-time employees, employees on leave, temporary employees, and employees who are jointly employed with another employer. Independent contractors under the FLSA are not counted. If an employer has separate establishments or sites, these should typically be counted together toward the employee threshold. The DOL will use the "integrated employer test" under the FMLA to determine if two or more entities are considered "separate" rather than a single employer.
- Full-Time vs. Part-Time Employment. For purposes of Emergency Paid Sick Leave (EPSL), a full-time employee is one who is normally scheduled to work 40 or more hours per week; a part-time employee is one who is normally scheduled to work less than 40 hours per week. In contrast, Emergency Family and Medical Leave (EFMLA) does not distinguish between full-time and part-time employees, but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.
- Sick Leave Hours. EPSL benefits for full-time employees are capped at 80 hours total over a two-week period, regardless of whether an employee normally works more than 40 hours in a workweek. Part-time employees are entitled to EPSL equal to the average number of hours they work in a two-week work period. If the part-time employee's hours vary, employers may use an average of the hours the employee worked over a six-month period. If a part-time employee has been employed for less than six months, employers should use the number of work hours the employer and employee agreed to upon hiring (and in the absence of such an agreement, use the average hours worked in all weeks since the employee's hiring).
- Order of Isolation or Quarantine. For the purpose of EPSL, an employee can take leave due to a quarantine or isolation order. Under this qualifying reason, shelter-in-place or stay-at-home orders issued by the federal, state, or local government also satisfy the requirement. Under these circumstances, the employee must not be able to work (or telework) and his/her employer has work available. If the employer does not have work available, an employee cannot take EPSL. Employees cannot take EPSL for a self-quarantine, unless they have done so upon advice from a doctor.
- Online Instruction and Distance Learning. Employees can take leave under EPSL and EFMLA to care for a child whose school is closed, or whose child care provider is unavailable. A school is "closed" if the physical location is closed, even if the child is receiving instruction online, or through other methods that require the child to complete assignments. The DOL guidance also clarifies that a "child" must be under 18 years old, or, if the child is over 18, he or she must have a disability that prevents the child from caring for himself or herself.
- Business Closures. An employee is not eligible for the benefits under the Act if the employer closes the worksite before the Effective Date, either because of a lack of business or to comply with a government directive. Furthermore, if an employer partially closes its operations; reduces its workforce; or furloughs, temporarily lays off, or terminates an employee prior to the Effective Date, such affected employee is also not eligible for the benefits. However, if an employer closes after the Effective Date and while an employee is on leave under the Act, the employer must pay the eligible employee for any leave used before the business closed.
- Health Care Providers and Emergency Responders Excluded. Leave benefits under the Act do not apply to health care providers and emergency responders. For purposes of the Act, a "health care provider" is broadly defined to include, among other titles, anyone employed at any doctor's office, hospital, health care center, clinic, medical school, nursing home, medical testing facility, laboratory, pharmacy, facility providing medical services, or any organization involved in the making of COVID-19-related medical supplies.
- The Small Business Exemption. Businesses with fewer than 50 employees may be exempt from the Act's requirements if providing child care-related paid leave would jeopardize the viability of the business as a going concern, which requires that (1) the paid leave expenses under the Act exceed available business revenue, causing the small business to cease operating; (2) the absence or request for leave by employees who possess specialized knowledge, skills, or responsibilities would jeopardize the financial health or continued operations of the small business; or (3) the small business employer does not have sufficient qualified workers to substitute for the absentees to carry on operations at a minimum capacity.
- Effect of Workers' Compensation or Disability. Generally, if employees are receiving workers' compensation or temporary disability benefits because they are unable to work, they may not also receive EPSL or EFMLA benefits.
- Leave for Child Care and Multiple Guardians. Employees can take leave to care for a child only when they need to and are unable to also work (or telework) because of the care. According to the DOL, if an employee's co-parent, co-guardian, or child care provider is available to care for the child, the employee generally does not need to care for the child, and therefore is likely ineligible for the paid leave.
- Documentation from Employees. To receive leave under the Act, employees must provide documentation supporting the need for leave. All documentation should satisfy the requirements an employer must confirm in order to receive the tax credit from the IRS, which may include (i) the employee's name; (ii) the date(s) for which leave is required; (iii) a statement of the COVID-19-related reason for which the employee is requesting leave and written support for such leave; (iv) a statement that the employee is unable to work (or telework) for the qualifying reason; and, when necessary, (v) the name of the government entity ordering quarantine or the name of the health care professional advising self-quarantine; and (vi) the name of the child to be cared for, the name of the school/place of care and its notice of closure, and a representation that no other guardian or child care provider is able to care for the child. Employers must retain this documentation to substantiate their qualification for a tax credit.
- Intermittent Leave. Employees may take leave under the Act intermittently only if the employer allows this practice. Employees may take leave in any increment (i.e., one hour, one day, etc.) if the employer agrees to the arrangement.
- Leaves of Absence. Employees who are on a voluntary leave of absence may return to work and receive EPSL and EFMLA. Employees who are on mandatory leave of absence are not eligible for EPSL and EFMLA because, in such situations, the mandatory leave of absence is the actual reason the employee is unable to perform work (or telework), instead of one of the qualifying reasons articulated in the Act.
- Twelve Weeks of Paid Leave. Employees may be entitled to leave under the EPSL and the EFMLA, but, at most, an employee is eligible for a total of 12 weeks of paid leave under the Act. Moreover, any FMLA leave taken before the Effective Date of the Act will count against the employee's 12 weeks of paid EFLA leave entitlement. Conversely, any EFMLA leave taken under the Act will reduce or fully exhaust the employee's entitlement to regular FMLA leave during the current 12-month period.
- Topping-Off Benefits. Employers may, but are not required to, allow employees to use company-provided paid time off benefits to supplement payments under the Act. The employee must choose to use such paid time off; the employer may not require him/her to do so.
- 30-day Employment for EFMLA Entitlement. Employees are entitled to leave under the EFMLA if they have been employed by their employer for at least 30 calendar days immediately prior to the first day of the employee's leave. There is no similar employment period for EPSL.
- Enforcement Grace Period. The DOL will not bring enforcement actions against any public or private employer for violations of the Act occurring prior to April 18, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act. That being said, after April 17, 2020, the DOL will retroactively enforce the Act for violations that have occurred since the Effective Date if the employer has not remedied the violation.
- Tax Credit. Employers that provide paid leave under the EPSL and the EFMLA are eligible for reimbursement of the costs of that leave through tax credits. Employers will not be reimbursed for the cost of paid leave provided to employees in excess of the Act's requirements or pursuant to a company-provided paid time off policy.
- Job Protection. The DOL has clarified that employers are required to provide the same (or nearly equivalent) job to an employee who returns to work after taking leave under the Act. However, employees are not protected from employment actions, such as layoffs, that would have affected them regardless of whether they took leave.
- Workplace Poster. Pursuant to the Act, the DOL has published a workplace poster for private employers and federal government employers. Employers must keep these posters in a conspicuous place on their premises. Employers may satisfy this requirement by emailing or direct-mailing this notice to employees, or posting this notice on an employee information internal or external website.
We will continue to monitor legislative and regulatory developments and will provide updates as more information is released.
For some answers to commonly asked questions regarding how to communicate with staff about COVID-19 challenges, click here. For additional information regarding COVID-19 legal issues, please visit Venable's COVID-19 Resources Page.
Employers with additional questions should contact Michael J. Volpe at MJVolpe@Venable.com, Ronald W. Taylor at RWTaylor@Venable.com, Allison B. Gotfried at ABGotfried@Venable.com, or any other Venable Labor and Employment Group attorney.