COVID-19 Business Strategies Hub

Emergency FMLA and Paid Sick Leave FAQ

President Donald Trump signed the Families First Coronavirus Response Act (“FFCRA”), which will become effective on April 1, 2020 and expires on December 31, 2020. The law requires employers with fewer than 500 employees to provide “emergency paid sick leave” and new Family Medical Leave Act (FMLA) leave for a “public health emergency.”

The U.S. Department of Labor (“DOL”) has issued new guidance interpreting the FFCRA and has issued the mandatory notice poster.


FFCRA

What is the effective date of the act?

The FFCRA paid leave provisions are effective on April 1, 2020, and apply to qualifying leave taken between April 1, 2020 and December 31, 2020.


When will the DOL begin enforcement?

The DOL has indicated that it will not begin enforcement actions until April 17, 2020, so long as employers have made reasonable good faith efforts to comply with the act, the employer remedies any violations as soon as practical, and the violations were not willful. However, if possible, employers should be prepared to comply with all paid leave provisions by April 1, 2020.


Who are covered employers?

The FFCRA applies to private employers with fewer than 500 employees and covered public employers. The determination on whether the employer has 500 or more employees is conducted at the time the employee is taking leave. The calculation includes employees on leave, temporary employees, jointly-employed employees, and day-laborers. Independent contractors are not included in the calculation.

Employers with fewer than 50 employees may seek an exemption if economic viability would be jeopardized by complying with the new category of leave under criteria determined by the Secretary of Labor.

Employers employing health care providers or emergency responders may elect to exclude those employees from this leave. The FFCRA does not define health care providers or emergency responders, but the FMLA existing definitions define a health care provider as, “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery … by the state in which the doctor practices or any other person determined by the Secretary [of Labor] to be capable of providing health care services.” The implementing regulations at 29 C.F.R. § 825.102 list a plethora of other types of health care providers, including nurse practitioners, clinical social workers, dentists, and others.


When can employees be aggregated to meet the 500-employee threshold?

The law does not address whether limited liability companies and subsidiaries may aggregate all employees to reach the threshold of 500 employees.

Generally, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees may be aggregated in reaching the 500-employee threshold.

Where a corporation has an ownership interest in another corporation, the two corporations are considered separate employers unless they qualify as joint employers under the FLSA. If two entities are considered joint employers, their common employees may be aggregated in determining if the 500-employee threshold is met for Emergency Paid Sick Leave (“EPSL”) and the Emergency Family and Medical Leave Expansion Act (“EFMLA”).  Factors determining if separate entities are joint employers include whether the putative joint employer:

  • Hires or fires the employee;
  • Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;
  • Determines the employee’s rate and method of payment; and
  • Maintains the employee’s employment records.

For purposes of the EFMLA, entities are separate employers unless they meet the integrated employer test. Factors for determining if separate entities are an integrated employer include:

(1)        Common Management;

(2)       Interrelation of Operations;

(3)        Centralized Control of Labor Relations; and

(4)        Degree of common ownership or financial control.

If you have questions regarding if your company is a joint employer or integrated employer, please contact your Dinsmore attorney as soon as possible.


When are employers with fewer than 50 employees exempt?

An employer with fewer than 50 employees may seek an exemption from providing EPSL and EFMLA leave due to school closures or child care provider unavailability due to COVID-19, if doing so would jeopardize the viability of the small business as a going concern. The DOL will issue criteria for determining if providing leave would jeopardize the viability of the small business in forthcoming regulations.

Under current DOL guidance, a small business may claim this exemption if an authorized officer of the business has determined:

  1. The provision of EPSL and EFMLA would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting EPSL and EFMLA would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting EPSL and EFMLA, and these labor or services are needed for the small business to operate at a minimal capacity.

To claim the small business exemption, employers must document why their business meets the criteria set forth by the DOL.


When are employers with fewer than 50 employees exempt?

Employers with fewer than 50 employees may seek an exemption whose economic viability would be jeopardized by complying with the new category of leave under criteria that will be determined by the DOL, but is not yet available. To claim the small business exemption, employers must document why their business meets the criteria set forth by the DOL, which will be set forth in forthcoming regulations.


Emergency Family Medical Leave

Who are eligible employees?

Emergency FMLA would be available to any employee employed for 30 calendar days, unless the employee is excluded under regulations issued by the Secretary of Labor (as described above). The employee must have been on the company’s payroll for the 30 calendar days immediately prior to the day the leave would begin (even if it was in a temporary capacity).


What events trigger Emergency FMLA leave?

The FFCRA new emergency FMLA covers eligible employees who must care for a minor child because of a COVID-19-related school closure or childcare provider loss if the employee is unable to work from home or telework. Employees who become ill with COVID-19, or are caring for family members who have COVID-19, may still be covered by the FMLA original unpaid “serious health condition” provision.


Is Emergency FMLA leave paid?

The first 10 days of leave are unpaid. For the final 10 weeks, employees receive up to two-thirds (2/3) of their regular rate of pay, with payments capped at $200 per day and $10,000 in the aggregate ($12,000 in the aggregate if emergency paid sick leave is utilized).

Employees may choose to utilize emergency paid sick leave or apply any current paid time off to the unpaid weeks, but employers may not require employees to do so, regardless of existing company policy.


Is the employee entitled to additional time off under the FMLA?

No. The FFCRA did not increase an employee’s total leave entitlement under the FMLA. Generally, employees are entitled to a maximum of twelve weeks of leave per leave year under the FMLA. In some circumstances, employees may be entitled to additional leave under the FMLA if they are caring for an ill or injured service member.

Employees who utilize EFMLA leave will have that time deducted from their total leave entitlement under the FMLA. If the employee has already utilized all of their FMLA leave for the relevant time period, they are not entitled to additional leave under the EFMLA. If the employee has only utilized a portion of their leave, then they are entitled to use the remainder of their available leave entitlement under the EFMLA. For example, if an employee utilized four weeks of FMLA leave in January 2020 to recover from a surgical procedure, the employee only has eight weeks of FMLA leave remaining rather than 12 weeks.

EPSL is not considered FMLA leave and does not count toward the FMLA leave entitlement, unless the EPSL is taken concurrently with the first two weeks of EFMLA.


Are overtime hours included?

Yes. The Emergency Family and Medical Leave Expansion Act requires employers to pay an employee for hours the employee would have been normally scheduled to work, even if that is more than 40 hours in a week. However, employees are still subject to the daily cap, and the bill does not require premium pay for overtime hours.


Does the FFCRA mandate job restoration following leave?

Emergency FMLA leave taken is generally job-protected requiring an employer to restore employees to their prior positions or an equivalent position following leave. The FFCRA includes an exception for employers with fewer than 25 employees, if the employee’s position no longer exists following leave due to operational changes caused by a public health emergency, subject to certain conditions, including requiring the employer to attempt to place the employee in an equivalent position over a one-year period.


How long is the Emergency FMLA leave available for eligible employees?

The FFCRA is set to expire December 31, 2020.


Emergency Paid Sick Leave

How long must the employee be employed to qualify for EPSL?

Covered employers must give emergency paid sick leave to any employee, regardless of the length of employment, for a qualifying emergency related to the coronavirus.


What EPSL benefits are employees entitled to?

Full-time employees are entitled to 80 hours of emergency paid sick leave, capped at $511 per day ($5,110 total) when the employee is absent for eligible reasons related to his own circumstances or capped at $200 per day ($2,000 total) for reasons related to eligible care for another person. Part-time employees are entitled to receive a proportionately similar amount of leave based on their average hours worked in a two-week period.


When can employees utilize EPSL benefits?

The FFCRA’s emergency paid sick leave component provides emergency paid sick leave if the employee is unable to work (or telework) because the employee:

(1) Is subject to a federal, state or local quarantine or isolation order;

(2) Has been advised by a health care provider to self-quarantine;

(3) Is experiencing symptoms of COVID-19 and is seeking a diagnosis;

(4) Is caring for an individual covered by (1) or (2) above;

(5) Is caring for a son or daughter whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 precautions; or

(6) Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.


What is the rate of pay for emergency paid sick leave benefits?

It depends on your normal schedule and the reason for your leave.

Employees absent for their own health emergency (qualifying reasons (1), (2), or (3) above) should be paid at the highest of: (1) regular rate of pay; (2) federal minimum wage; or (3) the local minimum wage. Payments are capped at $511 per day ($5,110 in the aggregate).

Employees absent to care for a sick family member, a child unable to attend school or place of care has been closed or whose child care provider is unavailable due to COVID-19, or is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (qualifying reasons (4), (5), or (6) above) are entitled to two-thirds (2/3) of their regular rate of pay, capped at $200 per day ($2,000 in the aggregate).


Are overtime hours included?

Yes. However, employees are only entitled to a total of 80 hours of emergency paid sick leave. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. EPSL does not require premium pay for overtime hours.


How is a full-time employee defined under the EPSL Act?

For purposes of the EPSL, a full-time employee is an employee who is normally scheduled to work 40 or more hours per week. A part-time employee is an employee who is normally schedule to work less than 40 hours per week.


Does emergency paid sick leave carryover from year to year?

No. Emergency paid sick leave will not carry over from year to year.


How long do the benefits last?

The benefits expire on Dec. 31, 2020.


Can employers require employees to utilize other paid leave provided by the employer before utilizing emergency paid sick leave?

No.


Can employers require that employees notify them of their intention to take emergency paid sick leave under the act?

Yes. Employers may require notice of the use of leave after the first workday (or portion thereof) that an employee receives paid sick time under the act.


Can employers deny emergency paid sick leave if they gave an employee paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?

No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers effective April 1, 2020. Employers must provide emergency paid sick leave in addition to any leave already provided.


Additional Questions:

What are employers’ notice requirements under the FFCRA?

Each covered employer must post a notice of FFCRA requirements in a conspicuous place on its premises. The DOL has developed a poster available here. An employer may also satisfy this requirement by emailing, directly mailing this notice to employees, or posting this notice on an employee information internal or external website. Additional guidance from the DOL on notice requirements is available here.


Are the emergency paid leave requirements retroactive?

No. Only leave taken after April 1, 2020 is qualified.


Are employees eligible for leave if the employer closes a worksite?

No. If an employer closes a worksite due to lack of business or because it is required to pursuant to a local, state, or federal directive, the employees are not entitled to FFCRA paid leave benefits. The employee may be eligible for unemployment insurance benefits.

If an employer closes while employees are receiving FFCRA paid leave benefits, the employer must pay employees for any FFCRA paid leave benefits used before the employer closed, but employees are not entitled to FFCRA paid leave benefits from the date the employer closes the worksite.


Are employees eligible for leave if the employee is furloughed?

No. If an employee is furloughed, they are not qualified for FFCRA paid leave benefits. The employee may be eligible for unemployment insurance benefits.


What is the impact on eligibility for employees whose work hours have been reduced?

Employees are not able to utilize FFCRA paid leave benefits for hours they are no longer scheduled to work due to a reduction in hours. The DOL’s rationale for this is that employees are not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19. The employee may be eligible for partial unemployment insurance benefits.


Can employees take paid sick leave or expanded family and medical leave intermittently?

It depends on why the employee is taking paid sick leave and whether the employer agrees to allow intermittent leave.

If the employee is utilizing emergency paid sick leave or emergency family medical leave intermittently to care for a child whose school or place of care is closed, or whose child care provider is unavailable because of COVID-19 related reasons, the employee may take leave intermittently if the employer agrees.

Unless an employee is teleworking, paid sick leave is only available in full-day increments. Intermittent leave is not available if the employee is working on site and if he/she: (1) is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (5) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services. Unless the employee is teleworking, once he/she begins taking paid sick leave for one or more of these qualifying reasons, he/she must continue to take paid sick leave each day until he/she either: (1) uses the full amount of paid sick leave; or (2) no longer has a qualifying reason for taking paid sick leave.


Can employees collect FCCRA benefits and unemployment benefits simultaneously?

No. If an employer provides FCCRA benefits, an employee is not eligible for unemployment insurance. However, states have the ability to extend partial unemployment benefits to employees whose hours or pay have been reduced.


Can employees use their employer’s preexisting leave entitlements and their FFCRA paid leave benefits concurrently for the same hours?

No. Unless your employer agrees, if you are eligible to take FFCRA paid leave benefits and other paid leave benefits provided by your employer, you must choose one type of leave. Your employer may allow you to supplement the amount you receive in FFCRA paid leave benefits, up to your normal earnings, with preexisting leave. For example, if the employee is receiving two-thirds (2/3) of their normal earnings from emergency family medical leave under the FFCRA, the employer may permit the employee to utilize their pre-existing employer-provided paid leave for the additional one-third (1/3) of their normal earnings.


Can an employer pay their employees more than they are entitled to receive for emergency paid sick leave or emergency family and medical leave?

Yes, but employers cannot claim a tax credit for the amounts in excess of the FFCRA’s statutory limits.


Are there anti-retaliation provisions?

Yes. Employers may not discharge, discipline, or otherwise discriminate against any employee who takes leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.


What record keeping is required?

For emergency paid sick leave, the employer must require employees to provide documentation sufficient to show:

  1. Employee’s name;
  2. Qualifying reason for requesting the leave;
  3. A statement the employee is unable to work, including telework, and the reason for the inability to work;
  4. The dates for which leave is requested; and
  5. Documentation supporting the qualifying reason for requesting leave. 

For quarantine or isolation orders, the employee will need to provide documentation showing the quarantine or isolation order, or the name of the health care provider who advised them to self-quarantine, such as a copy of the federal, state, or local quarantine or isolation order or written documentation by a health care provider advising the employee to self-quarantine. 

For emergency FMLA leave, employees must provide appropriate documentation to support the need for leave as would be required for conventional FMLA leave requests, such as a notice posted on a government, school, or day care website, published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider). This documentation would also be sufficient for paid sick leave taken for COVID-19 school or child care closings.

Employers seeking a tax credit should maintain documentation for the records and consult Internal Revenue Service (IRS) applicable forms, instructions, and information for procedures required to claim a tax credit.


How is a son or daughter defined under the Act?

Under the FFCRA, a “son or daughter” is your own child, including your biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis. Someone standing in loco parentis is someone with day-to-day responsibilities to care for or financially support a child. A “son or daughter” also includes an adult son or daughter who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability.


How does taking EPSL and EFMLA affect an employee’s health care coverage?

If employees are on an employer-provided group health coverage plan, they are entitled to continue group health care coverage during leave on the same terms as if they continued to work. Requirements for eligibility, including waiting requirements and payment of premiums by employees, would apply in the same way as if they were working.


Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?

Only a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA can direct an employee to self-quarantine due to concerns related to COVID-19 for purposes of EPSL.


Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

For purposes of exempting employees from EPSL and EFMLA benefits, “health care providers” are defined as anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

“Health care providers” also include any individuals employed by entities:

(1)        That contract with any of the above institutions, employers, or entities to provide services or maintain the operation of the facility;

(2)       That provide medical services, produce medical products, or are otherwise involved in the making of COVID-19 medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments; or

(3)       That are determined by the highest official of a state or territory to be a health care provider necessary for that state’s or territory’s response to COVID-19.


Who is an “emergency responder”?

Under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19. This also includes individuals who are determined by the highest official of a state or territory to be an emergency responder for the state’s or territory’s response to COVID-19.

This includes, but is not limited to, service members, members of the national guard, law enforcement officers, correctional officers, fire fighters, emergency medical technicians, paramedics, 911 operators, public works personnel, physicians, nurses, public health officials, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of these facilities.