Employers across America are requiring their employees to wear face coverings or masks while at work.

At the same time, employers across America are dealing with employees who have a million excuses why they can’t wear a face covering at work. Many of these excuses aren’t valid.

Some are.

If an employee claims to have a medical condition that prevents them from wearing a face covering, your ADA and FMLA radar should start buzzing. But how do you address this request?

Start with the ADA

An employee’s request not to wear a mask because of a medical condition triggers the interactive process under the ADA. Why? Simply put, the employee is requesting a modification to the manner in which they perform their job so that they can perform the essential functions of their job.

Here, the employee may have a respiratory impairment, anxiety disorder, autoimmune condition, or similar conditions. As several of my Littler colleagues address in this informative discussion, in addressing this situation from an ADA standpoint, the employer should ask the employee:

  • Does the employee actually have a condition that may need to be accommodated under the ADA, and can the individual provide reliable medical documentation to confirm their inability to wear a mask or face covering?
  • What are the essential functions of the employee’s job, and is wearing a face-covering a new, albeit transient, essential job function?
  • Are there alternatives to the mask or face covering requirement, such as use of a shield or methods for isolating the employee from others?
  • Would eliminating the face covering pose an undue risk to the safety and health of the employee or others?

Employers are wise to consider alternatives to meet ADA obligations.  Still, in many of these situations, you still will legitimately find that wearing a mask is an essential job function and the employee cannot be excused from wearing one at the worksite.

Finish with the FMLA

If you find that the only option available is to exclude the employee from working because the job requires that they wear a face covering, what do you call this leave?

I call it F-M-L-A leave.

Let me explain. An employee is entitled to take FMLA leave when: 1) they have a serious health condition that 2) renders them unable to perform one or more essential job functions.

Serious health condition: In most cases, the employee will be able to establish that they have an underlying medical condition, whether it’s a chronic condition or a long-term condition requiring ongoing care.  If they don’t have such a condition, then the inquiry is closed and no leave or accommodation is required. However, in many of these situations, the employee will find a doctor who will certify their medical condition.

Unable to perform job: But does this condition render them unable to perform an essential job function? In the COVID-era, it seems eminently reasonable for the employer to add face coverings as an essential job function for most or all positions.  Taking this position is only strengthened by state and local laws mandating face coverings and CDC guidance highly recommending them.

Here, the employee has a serious health condition that renders them unable to perform the essential function of wearing a face covering.  As the DOL made clear in recent opinion letters, because leave is “being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].” 29 C.F.R. 825.301(a)

Case closed.

Hat tip to my Littler colleagues Casey Kurtz and Alexis Knapp for their candid thoughts on this timely topic.

In the middle of the COVID-19 pandemic, the U.S. Department of Labor hit the pause button on pandemic concerns and returned at least for a moment to the good old fashioned F-M-L-A.

This morning, the DOL issued new model notices and forms to be used by employers in the administration of the FMLA. The notices and forms, though different in their appearance (think lots of small boxes, longer and far more numbered paragraphs, and even a few colors), are not necessarily game changers when it comes to substance. These new model documents tend to tweak the old forms around the edges, and as a result, they’re more likely to elicit a shrug of the shoulders than a high five.

Still, there are a number of changes, some for the better, some that are head scratchers. With the caveat that I’m still digesting this new paperwork, here are some of my initial takeaways:

Notice of eligibility

  • Separate sections outline employee rights and responsibilities generally in a clearer manner than what we’re used to in the past. But DOL takes up a ton of real estate to get there.  Longer is very rarely better.  But is this time the exception?
  • The notice includes a host of check boxes to specify precisely which family member you will care for. I guess this is good?
  • The notice provides a much clearer explanation of how employer-provided, accrued paid leave runs concurrently with FMLA
  • Unfortunately, it restates what has always been misleading about the form: that the 15-day period to return certification runs from the time the employer provides the medical certification, which is not true.  The employee has 15 days from the time they receive the certification, not from the time the employer actually sends it out. (See 29 CFR 825.313b) The date the employer sends and the date the employee receives are always two different dates unless the employer emails the documents. This could have been an easy fix, but DOL swung and missed on this one. Consequently, confusion remains.

Designation Notice

  • The Notice makes clear that employers are obligated to designate FMLA leave whenever leave is covered by FMLA, even if the employee and/or employer do not want FMLA to apply. This harkens back to its 2019 opinion letters in which DOL made clear that “neither the employee nor the employer may decline FMLA protection for leave.”
  • If need for leave changes, the DOL tells us in this new form that the employee is to notify the employer “as soon as practicable if the dates of scheduled leave change, are extended, or were initially unknown.”  This pronouncement undermines an employer’s call-in requirements.  Technically, this is a regurgitation of the regulations, but it really should be edited by any employer that has a specific call in procedure so there is no confusion.
  • Like the Notice of Eligibility, this form again offers a clearer explanation of how paid leave will run concurrently with FMLA
  • The most notable change, however, might very well be DOL’s effort in outlining the steps that an employee should take to cure an incomplete or insufficient certification.  Here, the DOL requires the employer to specifically explain what is missing and/or insufficient.

Medical Certification

  • Unlike its predecessors, this new certification makes clear that an employer dare not request certification for FMLA leave to bond with a healthy newborn child or a child placed for adoption or foster care. Yeah, this is a no brainer, but plenty of employers still get this wrong, and clearly, DOL thinks so, too.
  • Notably, the new form requires a “best estimate” of the employee’s or family member’s future treatment, which surely will be helpful to employers
  • Back when the draft forms were circulated by DOL last fall, I complained that the main portion of the proposed medical certification form consisted of a series of boxes associated with a “serious health condition” or pregnancy that the health care provider simply needs to “check” without giving much thought to the situation. This particular section, I argued, would lead the physician to conclude that he/she is obligated to check one of the boxes so as to confirm that the employee or family does indeed have a serious health condition.  In other words, simply checking a box causes the doctor to make a legal conclusion rather than provide actual medical facts to allow the employer to make the ultimate determination as to whether the absence is covered by the FMLA. In the final version of the certification form, however, DOL added a box in which the health care provider could confirm there is NO serious health condition. Bingo!  

These new forms are not without some oddball issues.  At the top of my list, here are two for now: 

  1. Every new notice and form requests that the employee’s name be written at the top of each page. What are we, second graders?  Come on, dumb idea.  This creates needless work.
  2. I’ve always thought it is ridiculous that the medical certification form does not – as its VERY first question – ask that the health care provider provide the medical facts supporting the employee’s need for leave. Seems simple enough, right? After all, the employer wants this basic information right out of the gate to understand why the employee can’t come to work. This ridiculousness only gets worse under the new certification form, as it’s not until page 3 (of 4) of the new form that the health care provider is asked to describe any (additional) medical facts about the condition.

The DOL Wants Our Opinion

Along with its new notice and forms, the DOL also published a request for information (pdf) asking employers and employees for their feedback on potential changes to the FMLA regulations.  Initially, the DOL generally asked what employees and employers “like to see changed in the FMLA regulations” to better put into effect everyone’s rights and obligations under the FMLA?

But then DOL drilled down further. For example, the agency is seeking our opinion on:

  1. What, if any, challenges have employers and employees experienced in applying the regulatory definition of a serious health condition?
  2. What, if any, specific challenges or impacts do employers and employees experience when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule?
  3. Best practices and suggestions to improve implementation of the Act’s intermittent leave provisions.
  4. What, if any, specific challenges do employers and employees experience when employees request leave or notify their employers of their need for leave? For example, do employees convey sufficient information to notify employers that the employee may have an FMLA-qualifying reason for leave or that the employee is requesting FMLA leave?
  5. What, if any, challenges employers and employees have experienced with the medical certification process that are not addressed by the newly revised forms?
  6. Whether it would be helpful to provide additional guidance regarding the interpretations contained in any of the opinion letters issued over the past two year.
  7. Specific information and any available data regarding other specific challenges that employers experience in administering FMLA leave or that employees experience in taking or attempting to take FMLA leave.

Comments are due to the DOL by September 16, 2020 (60 days after this publication).  Whether any of our input will ever see the light of day is anyone’s guess, especially if there is a new occupant in the White House after this November’s general election.

Either way, I’m sharpening my pencil to start my first draft . . .

Sadly, too many of my telephone conversations with clients over the past few months have involved layoffs. Furloughs. Elimination of jobs.

Of course, we’ve also discussed the great unknown of when some of these employees will be brought back to work.

At times, questions have arisen over how a furlough might impact an employee who currently is on FMLA leave or has requested FMLA leave for a time during the furlough.

What takes precedence?  The furlough or the FMLA leave?

What is a Furlough?

First things first. Let’s make sure we understand the terminology.

The term “furlough” does not necessarily have a precise legal definition, but it generally refers to a forced period of time off work without pay and is intended to be used for a temporary or limited duration. During the period of furlough, the employee remains employed and typically remains eligible for benefits (depending on the terms of the employer’s policies and plan documents).

During a furlough, the employee has no work schedule, since the employee is not expected to work.  Placement on a furlough assumes – at least at the outset – that the employee will be reinstated to work, though it often is unclear when the employee will be recalled.

Occasionally, the term “temporary layoff” is used to describe a furlough, but don’t be confused.  A temporary layoff in this context does not mean employment is terminated.

How is FMLA applied during a furlough?

Do the FMLA regulations speak to this issue? No.

How about case law? No.

With the caveat that we don’t have a ton of great guidance on this issue, I counsel employers that they cannot exhaust FMLA leave during a furlough for a few reasons:

  • Most importantly, and from a practical standpoint, the employee is not scheduled to work during a furlough – naturally, they are on a forced leave of absence that usually is unpaid.  As such, there is no work schedule from which to take FMLA leave.Think of it similar to a teacher who is on FMLA leave at the time the school year ends and summer break begins. When summer break begins, the teacher no longer is expected to come to work, even though the school has not necessarily closed operations. As of summertime, the teacher has no work schedule, similar to a furlough. Because there is no work time, there is no schedule from which to take leave. Therefore, the employer does not exhaust the employee’s FMLA leave time over the summer. Leave could pick up again in the fall when the employee is expected to return to work (so long as he/she has FMLA leave remaining).Same concept here. Because there is no work schedule from which to take leave during a furlough, FMLA leave cannot be exhausted.
  • The FFCRA is a bit persuasive here. The DOL has advised that furloughs cut off an employee’s use of paid sick leave and paid FMLA leave under the Families First Coronavirus Response Act (FFCRA). In FAQ #26-28 of the DOL’s guidance to FFCRA leave, the DOL very clearly takes the position that FFCRA leave is not available during periods of furlough or closure of the workplace.  This leads to the conclusion that FMLA should be treated in the same fashion, since FFCRA leave is interpreted through the lens of FMLA.
  • It’s also persuasive that federal agencies take the position that federal employees cannot take FMLA leave during a furlough, leading us further to the conclusion that the same applies to private-sector employees.  See, for instance, the Treasury’s position on FMLA during furloughs.

Does an Employee Accrue Hours Worked While on Furlough?

Simply put, no. This is a tough reality for employees. As we know, an employee must have worked 1,250 hours at the time FMLA leave is to begin. When determining whether an employee has worked the requisite 1,250 hours in the previous 12 months to be eligible for FMLA leave, an employer must account for hours actually worked by the employee within the meaning of the Fair Labor Standards Act. 29 CFR § 825.110(c). When an employee is on furlough, of course, they are not performing work for the employer, so keep in mind they are not accruing any hours toward the 1,250. (H/T Sarah Simmons!)

Be Mindful of State and Local Paid Sick Leave Laws

Prior to the COVID-19 pandemic, it was fairly clear that employees could not use state/local paid sick leave during a time they were on furlough.

However, a handful of locations now allow paid sick leave (PSL) to be used during the pandemic.  Take, for instance, San Francisco’s emergency PSL, which can be used by employees who are furloughed, or Philadelphia’s PSL, which can be used if the employee “would have been eligible to use . . . sick leave had [the employee] not been laid off or furloughed.”

Before denying state/local paid sick leave to an employee during this pandemic, be sure that you are well aware of the local guidance on how PSL is paid out if an employee is furloughed.

Today, my little FMLA blog turns 10 years old.

Ten years ago, at a time when very few people knew what the heck a “blog” was, including me, I took a chance that HR and leave of absence professionals and attorneys might need some help answering the difficult, yet common issues they faced when administering the FMLA.

So, on May 26, 2010, I published my very first blog post – a short tale about an employee, Ellen, who got canned when her employer discovered a mountain of deficiencies in her work while she was out on continuous FMLA leave. Upon her return, with evidence in hand, her employer, GSK, terminated her employment. The court quickly dismissed Ellen’s FMLA claims, reaffirming the principle that the FMLA doesn’t act as a shield that wards off termination where it’s warranted, as was the case here.

Hundreds of posts would follow over the next 10 years, thankfully less dry than this first post.

When I started, I had two goals in mind: to connect a legal topic I was passionate about — the FMLA! — with my love for writing and to help employers solve real life FMLA problems.

Last year, my friend and Lexblog CEO Kevin O’Keefe and I discussed these goals and how they have sustained me and other legal bloggers over the years.  In this session, as Kevin and I have done over the years, we discussed what it takes to sustain a legal blog over time. Several ideals come to mind, but these have kept me going:

  1. Passion: You’ve got to love the topic to be on your game. Find a subject area you are particularly passionate about as your foundation. At plenty of points along the way, you’ll hit writer’s block or worse, but your passion for the topic will bring you back. Conversely, if you are not passionate about what you’re blogging, you’re far more likely to simply walk away.
  2. Perseverance: We’ve devolved over the decades into a culture that craves instant gratification. We see it in a very real way today: we’ve sheltered in place for two months because of a pandemic, but it’s eating away at us that we don’t know precisely when this thing will end. We need the answer now and must be able to control the outcome. Amirite? Similar to waiting out a pandemic, blogging is a long slog; you don’t become a trusted voice overnight. Yet, blogging teaches us patience in that hard work will be paid back not at once, but over time. With perseverance, blogging will be one of the most professionally rewarding things you’ll ever do.
  3. Be in it to help people: Nearly all the people you’ll help with your (practical) blog posts will never hire you. But knowing that you helped someone when they needed it will sustain you far longer than any fleeting summary judgment victory.
  4. Use social media to bolster blog posts: After publishing a blog post, your job has only begun! Social media platforms like LinkedIn are invaluable to engage in authentic conversation with other professionals about the topic and gives you an opportunity to help even more HR and legal colleagues.

A Look Back on Ten Years

Over the span of 10 years, I’ve blogged on quite a number of FMLA topics. A few blog posts are particularly memorable, others quickly forgettable.  Here are some that stand out for me:

Employees behaving badly:

There are plenty to choose from in this category, but I am particularly fond of:

1)  If you’re going to get caught, you might as well go all in. Several City of Chicago employees were busted for using FMLA leave for “booze cruises” in the Caribbean. I detailed how they got busted and offered tips for fighting FMLA leave abuse here.

2) Can’t get enough Beyonce! A BNSF Railroad employee received a bad review and apparently was so stressed out by the review she began an extended FMLA leave the very next day. She couldn’t have been in too bad a shape, though, since she decided while she was on leave to attend a Beyonce concert — in her employer’s corporate suite.

Employers behaving badly:

Two employers stand out:

1) Boadi v. Center for Human Development, where the VP of Human Resources allegedly terminated an employee knowing that the employee still remained in her hospital bed unable to come to work, and the employee’s son pled with with the VP that his mother could barely speak, let alone leave her hospital bed to come to work.

2) Valdivia v. H.S. School District 214, where an administrative assistant cried uncontrollably at work, and allegedly told her boss (the principal) that she was “confused and overwhelmed, had not slept or eaten in weeks, and was losing weight.” The principal’s *heartfelt* response when faced with all these signs?  She apparently told the employee she had to decide whether to resign [apparently because the principal had enough of the crying].  Unbelievable.

What’s even more incredible is that both of these employers inexplicably took these atrocious cases to trial [goodness, who was counseling them?], where they were unceremoniously hammered by the juries who heard their respective cases.  Is anyone surprised? 

Most practical post: Folks tend to cite to my post on the Top 10 Tools Employers Can Use to Keep Employees Honest to crack down on FMLA abuse. Not a silver bullet, of course, but it gives you some ideas to get creative in busting the bad guys.

Favorite blog photo: When you can write about butt implants and include a photo of a bell pepper in the shape of a rear end, you do it.  Every time.

Most verbose post: Apparently, I had a lot to say about the New York Paid Family Leave, which was one of the first of its kind in terms of government-mandated paid leave.  But my comments about the new FFCRA regulations this past year were a close second.

Cutest blog photo: There’s no competition on this one:  A 2014 photo of my baby girl, Maggie, just a few days old.

Post I really enjoyed writing: When I celebrated the FMLA’s 25th Anniversary with my family (including a cake!) and wrote an open letter to the DOL about everything they needed to fix about the FMLA, it felt good writing that post, even if it didn’t do one darn bit of good!

Dumbest post: Back in May 2019, I reported that the DOL likely would be issuing a request for employers and employees to provide input on possible changes to the FMLA regulations. In hindsight, did I actually think this was going to happen? Really, why did I waste my time reporting on this development?

My favorite FMLA jingle: People still poke fun at me for “Albuquerque Turkey,” a lovable turkey who regularly abuses FMLA leave, and who I sang about in my November 2014 webinar.  Sing along here if you’d like.

What’s Next?

You tell me! Let me know what you want me to write about in the world of FMLA in my next decade. I’m not going anywhere!

In the meantime, I am so incredibly grateful for you. Thanks for your constant support this past decade. It’s been a treat to interact with so many of you on this journey.

 

Are you working from home during the pandemic? Me, too.

Are you having trouble keeping your kids off Fortnite and Minecraft, and literally every other screen in your house? Me, too.

Do you still love your children? Me, too.

For the most part.

But with four young children at home, I am ready to return to the office.

Soon. [While still loving them, of course.]

Summer Camps and Activities Obliterated

Like many parents, I face the reality that nearly every summer camp and activity in summer 2020 has been cancelled.

Aren’t we lucky?

Naturally, employers are wondering whether they are obligated to provide paid sick leave (EPSL) and paid FMLA leave (FMLA+) under the FFCRA for occasions when employees are required to care for their children because their kids’ summer camp is closed.

The short answer is yes.

According to the DOL’s recently-released FAQ #93:

  • EPSL and FMLA+ cannot be used when school is closed for summer vacation or other reasons unrelated to COVID-19,
  • EPSL and FMLA+ can be used if the employee’s summer child care provider (a camp, recreational program, or day care center) is closed due to a COVID-19 related reason.

But this also raises a question for me: to take EPSL or FMLA+, must the employee establish that the child actually was enrolled in a 2020 summer camp as a precondition to take leave?

Insights for Employers

On one hand, FAQ #93 seems to make clear: an employee can take leave if “his or her child’s care provider during the summer—a camp or other programs in which the employee’s child is enrolled—is closed or unavailable for a COVID-19 related reason.” Employers might jump on this specific phrasing to take the position that the employee must establish that the child already was enrolled in a program. After all, if your kid is not enrolled in a summer camp or program, it can’t be closed on you.  Right?

Seems to make some sense.

But I also am worried FAQ #93 is a trap for employers. It seems pretty clear that many of your employees will be able to show that:

  • For every summer for the past “x” number of years, the family enrolled the child in a summer camp or program, or that grandma (or name your family member) was the child care provider summer after summer.
  • They didn’t yet enroll the child in the camp this year, or that grandma otherwise became unavailable to care for the kids.
  • They had every intention of enrolling in a similar summer camp this year, or planned on a similar child care arrangement, but because of the uncertainty of the world around us during this pandemic, they failed to close up all loose ends.
  • The summer camp closed, making the usual child care unavailable.

Do you think this is a closer call now?

Yeah, I think so, too.

Keep in mind, too, that we’ve been shuttered as a society for months. Everything is closed, so it’s entirely possible summer camps have been closed this year before they ever were open, making it impossible for parents to register in the first place.

There is no easy solution in this situation. As I have said before, let’s keep in mind that we are in the human relations business, and during a pandemic of a lifetime where scores of parents will be left without usual child care to rely on, this is a situation where we simply might want to give the employee the benefit of the doubt.

At times like these, let’s show them employers have a heart, too.

Are you an employer covered by the the Families First Coronavirus Response Act (FFCRA) and do you use temp employees?

I’ve got something to share with you.

Over the past few weeks, I’ve been giving presentations to employers on the FFCRA [who hasn’t!?!] and have counseled them on their FFCRA obligations with respect to the temp employees whose services they use (from the temp agencies that employ them).

Using the FMLA classic regulations as my authority, I’ve counseled these employers that they are not on the hook to provide paid sick and paid FMLA leave to these temp employees so long as they are employed by the temp agency.  Since they are the “secondary employer,” after all, these employers can defer to the temp agency, which is responsible for making FFCRA payments.

But then the DOL released FAQ #90.

In FAQ #90, the DOL addressed how a temp employee is provided paid sick leave (EPSL) and paid FMLA leave (FMLA+) under the FFCRA.

Before I spill the beans on FAQ #90, though, let me first remind you of how a temp agency/client employer set up works under a typical FMLA scenario.

Use of Temp Agencies and Impact on FMLA

In a typical FMLA situation, if an employer needs temporary workers to perform work, they contact their local temp agency, which supplies the workers to the employer. Not many more questions asked.

If the worker later needs to take FMLA leave, the temp agency is considered the “primary” employer, which is responsible for providing the requisite FMLA notice, leave, health benefits and job restoration. The client employer is the “secondary employer” which, for FMLA purposes, simply is required to accept the worker being restored from FMLA leave so long as it is still using temporary employees from the agency and the agency sends the employee returning from leave to the employer. 29 C.F.R. §§ 825.106(c) and (e)

So, to recap:

Primary employer (temp agency): Provides the notices and substantive leave

Secondary employer (employer using temp help): You take ’em back when they’re ready to come back and don’t dare retaliate against ’em for taking leave [that’s it!].  Otherwise, you just sit there and look pretty, right?

But What About FAQ #90?

Here’s where FAQ #90 comes in. Take a read here if you’d like.

In a strange twist, the DOL tells us in this latest FAQ — issued last week without any fanfare because by this time we’re all just gassed after reading the 89 FAQs leading up to it:

  • If a temp employee is employed by a temp agency with 500 or more employees, the temp agency is not obligated to pay the employee EPSL or FMLA+.  [Makes sense, because the temp agency is too large to be covered by FFCRA.]
  • In this case, the employer where the temp employees is placed will generally be required to provide the employee with EPSL and FMLA+ (so long as it has fewer than 500 employees).

Huh? 

Remember my quick temp employee lesson I provided above? The one where I told you that the “primary” employer — that is, the temp agency — pretty much has all the responsibilities in an FMLA situation?

This latest FAQ seems to turn that general theory on its head.  Surely, the DOL didn’t mean to heap upon employers (that hire temp help) the obligation to pay EPSL and FMLA+ to the temp employees it retains from a temp agency.

Or did it?

Insights for Employers

What does this mean for employers? Couple of thoughts here:

  • Despite this somewhat inartful FAQ, I am reading it very narrowly.  Keep one premise in mind: the FAQ does suggest that the employer utilizing the temp’s services is on the hook for EPSL and FMLA+ if they are a joint employer with the temp agency. Keep in mind a true 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.
  • Therefore, in many employee leasing situations, the employer simply will not have this kind of control over the temp employee. As a result, the argument is that the far majority of employers (even though they are covered FFCRA) are not required to provide EPSL and FMLA+ to temp employees because they don’t have the requisite control over them.

That’s my story, and I am sticking to it. In the meantime, it would be nice to get a clarifying FAQ from the DOL to put us at ease.

Then again, for our collective sanity, perhaps its current list of 93 FAQs is just fine…

As employers have noodled on the new federal emergency paid sick leave (EPSL) and paid FMLA leave (FMLA+) law, you’ve done a double-and triple-take on the notice and documentation requirements under this new law. In short, they can be confusing. As a result, plenty of clients have asked me to break down this process just to confirm they are understanding these confusing rules.

To make this as clear as possible, I thought it best to break down the notice and documentation processes for an employee requesting leave.  Here we go:

What is the Time Frame for Requesting EPSL and FMLA+?

The timing of notice differs depending on the reason for leave.

For employees who need leave for school closures/childcare unavailability, and where this leave is foreseeable, employees must provide notice as soon as is practicable (consistent with “classic” FMLA standards). When an employee needs leave for any other reason under EPSL, the standards loosen, and employers can only require employee notice after the first workday that an employee takes EPSL.

Nothing in the new regulations prevents an employer from directing employees to then follow the organization’s usual and customary procedures from that point forward, and the Department of Labor indicates that such expectations will typically be reasonable.

Keep in mind: Employers must accept this notice from the employee’s spokesperson, such as a family member or other responsible party, if the employee is unable to provide such notice personally.

What Information is Required When an Employee Requests Leave?

The DOL regulations make clear that the employee must provide to the employer:

  1. the employee’s name
  2. the dates for which the employee requests leave
  3. the qualifying reason, and
  4. an oral or written statement that the employee is unable to work because of the qualifying reason.

Keep this last point in mind.  Oral notice of the initial need for leave under FFCRA is sufficient, as long as the employee provides enough information for the employer to determine it is an FFCRA-qualifying reason for leave.  However, as you may recall from my post last week, you should consider using an actual leave request form to maximize compliance.

Is that it? At that point, the employee can just take leave?

Nope, there’s more. Now, the employee must provide documentation to support the need for leave.

What Documentation Must the Employee Provide to Support the Need for EPSL and FMLA+?

It depends on the reason for leave:

If an employee has requested EPSL:

  • Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the Order
  • A health care provider advises an employee to self-quarantine due to concerns related to COVID-19: the name of the health care provider who advised the employee to self-quarantine.
  • Employee is caring for an individual who is subject to a quarantine or isolation order or an individual who has been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the Order to which the individual being cared for is subject, OR, the name of the health care provider who advised the individual being cared for to self-quarantine.

If an employee has requested EPSL or FMLA+ to care for a child whose school is closed or childcare is unavailable:

  • Employee must provide the name of the child, name of the school, place of care or child care provider (each defined in the regulations) that has closed or become unavailable, and a representation that “no other suitable person will be caring for the child during the period” the employee is taking EPSL or FMLA+ for this reason.

When Must this Documentation Be Provided?

That’s a good question. The DOL regulations are completely silent as to time period during which the employee must provide documentation or information supporting the need for EPSL or FMLA+.  Under classic FMLA, it’s 15 days, of course. But we have no stated rule here. Given that the classic FMLA gives an employee 15 calendar days to return certification, it seems perfectly reasonable to require the same time period here. Given that EPSL runs no more than two weeks, it also is defensible to provide a shorter period in this situation solely for EPSL (e.g., 7-10 days).

In considering how hard nosed an employer should be in this scenario, however, let me encourage you to closely consider the following  . . .

Patience is a Virtue

At all times, tread carefully. This is not necessarily the classic FMLA situation, where we can be a bit more no non-sense about the notification and documentation process. In its regulations for EPSL and FMLA+, however, the DOL reminds employers that if an employee fails in some regard with respect to providing notice or supporting information or documentation, the employer should give the employee notice of the failure and an opportunity to correct the deficiency prior to denying the leave.

Under the Families First Coronavirus Act (FFCRA), employers with fewer than 500 employees are required to provide paid sick leave (EPSL) and paid FMLA leave (FMLA+) for certain reasons related to the Coronavirus pandemic. The law went into effect April 1 and its obligations continue through December 31, 2020.

Employers need policies and forms to comply with this new law.

We now have these policies and forms ready for you.

Why Do You Need a New Policy and Forms to Comply with this New Law?

This new law is fraught with compliance issues for employers.  Take, for instance, these risky scenarios for employers that do not document an employee’s leave request:

  • Your employee, Johnny, does not have symptoms of COVID-19 but insists that he needs to take off work to avoid any exposure. Is he eligible to take EPSL? If you and Johnny later dispute the reason for his need for leave, do you have a leave request form from Johnny to back up your story? Nope.
  • One of your employees, Betty, sought FMLA+ for a COVID-19 related reason, but a dispute later arises over whether you improperly denied her intermittent leave to care for her child whose school was closed. You recall that she requested continuous leave, but you have nothing in writing confirming that fact.
  • You require your employee, Gnarls, to exhaust his employer-provided PTO at the same time he is taking EPSL. After the fact, he claims that he did not give you approval to burn his accrued paid leave at the same time he was taking EPSL .  You recall him telling you to apply his accrued leave, but you have nothing in writing to confirm. Is this a violation of the law?

This hastily-drafted law is a mess, and it undoubtedly will create liability for employers that fail to document the employee’s request for EPSL or FMLA+.  Employer compliance is made even more difficult because the Department of Labor has made clear that it will not be publishing model policy language or model forms for employers to use for EPSL or FMLA+.

This creates significant compliance risks.

Employers undoubtedly want to make their employees aware not only of their leave entitlement under this new law, but also the expectations for requesting and taking EPSL or FMLA+. Additionally, it also is critical that employers obtain in writing their employees’ request for leave, including whether they are requesting intermittent leave (and why), whether they want other forms of paid leave to run instead of or concurrently with EPSL and FMLA+, among other important issues.

Our Solution

To meet this need, we have created two template policies (one policy for EPSL and another for FMLA+) and four template forms based on the law and the Department of Labor’s published Questions & Answers, which were updated just this past week.

Specifically, we can provide the following to improve your compliance efforts:

Policies

1. Emergency Paid Sick Leave Act policy
2. Emergency Family and Medical Leave for Public Health Emergencies policy

Forms

3. Emergency Paid Sick Leave Act (EPSL) Leave Request and Notice Form
4. Emergency Family and Medical Leave Expansion Act (FMLA+) Leave Request and Notice Form
5. Notice of Eligibility for Emergency Family and Medical Leave Expansion Act (FMLA+) Leave and Rights and
Responsibilities; and
6. Designation Notice for Emergency Family and Medical Leave Expansion Act (FMLA+)

If you are interested in obtaining these model policies and/or forms, please contact me at jnowak@littler.com for pricing.

For the past month, I’ve been in the leave law trenches with several Littler colleagues Alexis Knapp, Jim Paretti, Sebastian Chilco and Michael Lotito. The ‘virtual’ trenches, that is, which serves them well, as they have no clue I’ve spent nearly the entire time without a shower and in my PJs.

When we all learned Friday afternoon that the Department of Labor had published yet another set of Q&As interpreting the emergency paid sick and paid FMLA leave law, I won’t sugar coat it – we wanted to cry.  After all, we were fresh off our analysis of the new DOL regulations the day before, and at least two phases past bleary-eyed.

After kvetching back and forth in a flurry of emails over the course of approximately 1.85 minutes, we knew we had to get back to work. Our colleague, Sebastian, took the lead in drafting our analysis of the latest round from the DOL. I couldn’t say it any better than he did, so I’ve lifted much of his great work (added some of my embellishments) and publish it here.

After giving employers a day off from addressing new information concerning the federal Families First Coronavirus Response Act (FFCRA), the DOL released 20 new Q&As concerning employer obligations and employee rights under the new paid sick leave (EPSL) and paid FMLA leave (FMLA+) law.  New questions and answers start at #60, with some minor revisions to earlier Q&As. The full set of Q&As can be found here.

In its latest round, DOL reiterated much of what it pronounced in EPSL and FMLA+ regulations issued earlier last week.  Notably, the DOL again touched upon shelter-in-place orders and their impact on EPSL and FMLA+, further explained various reasons for EPSL, and fine-tuned some earlier answers.

We highlight the relatively important stuff here:

More on Shelter-in-Place Orders and No Self-Quarantines: In the new batch of Q&As, the DOL addresses several situations regarding how employers should evaluate FFCRA leave eligibility due to shelter-in-place orders. For example, in response to a question about how employees should know whether they can receive EPSL for a “Federal, State or local quarantine or isolation order,” the DOL explains in FAQ #60:

For purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes quarantine or isolation orders, as well as shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority that cause you to be unable to work (or to telework) even though your employer has work that you could perform but for the order. You may not take paid sick leave for this qualifying reason if your employer does not have work for you as a result of a shelter-in-place or a stay-at-home order… (emphasis added).

Also, in the DOL’s temporary regulations issued on April 1, the Agency highlights the many ways FFCRA emergency paid sick leave (EPSL) differs from pre-FFCRA state and local mandatory paid sick leave laws. For instance, in new FAQ #62, the DOL drills home this point by clarifying that employees cannot use FFCRA leave to self-quarantine on their own without any input from a medical professional:

You may not take paid sick leave under the FFCRA if you unilaterally decide to self-quarantine for an illness without medical advice, even if you have COVID-19 symptoms.

The examples the DOL provides on shelter-in-place and quarantine situations cover quite a bit of ground and are worth a careful read.

School & Care Place Closure Applies, Even if Online: The DOL emphasizes “closure” standards for schools and places of care focus on physical closures, so even if the entity provides “online” or “distance learning” instruction, a closure occurs and FFCRA leave might be available if all conditions for leave exist.

Watch Out for the Use of the Word “Individual” Under EPSL: Different reasons for EPSL use different definitions. While school/closure and childcare leave may be available only for a son or daughter as the law defines them, caring for someone else who may have COVID-19-related medical issues specified under EPSL is broader, and the law uses the term “individual.”

A new Q&A reminds employers that, even if employees do not qualify to take leave to care for their own child, it does not mean leave might not be available to care for someone else’s child. Generally, employees can take EPSL if, among other reasons, they need to care for an “individual” who is subject to a federal state, or local quarantine or isolation order related to COVID-19 or for whom a health care provider advises self-quarantine due to COVID-19 concerns. As a reminder, the DOL rules define an “individual” as an 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 them in a quarantine situation.

In a bit of comic relief (at least as far as my friend Matt Morris and I are concerned), the DOL put us at ease in FAQ #64 by reminding employees, “You may not take paid sick leave to care for someone with whom you have no relationship.” As a result, Matt and I (but mostly Matt) are relieved to know that DOL shut the door on any possibility your employee might have to care for the guy at the end of the bar at the local tavern.  [At a time like this, it’s the small victories, people, the small victories.]

DOL Reminds Us that Really Only One Person Should Care for a Child: Naturally, clients have been asking me whether they need to provide leave to an employee because of their kid’s closed school when there is ample evidence that the other parent or another caretaker is available.  In FAQ #69, DOL again reminds us that leave is not appropriate in these circumstances:

You may take paid sick leave or expanded family and medical leave to care for your child only when you need to, and actually are, caring for your child if you are unable to work or telework as a result of providing care. Generally, you do not need to take such leave if a co-parent, co-guardian, or your usual child care provider is available to provide the care your child needs. See Question 20 for more details. (My emphasis)

“Substantially Similar Condition” Remains a Mystery: The DOL notes that the Department of Health and Human Services (HHS) has not yet issued guidance on what this last reason for EPSL may include, but, if HHS does not, the DOL will do so.

More Examples of Leave Being Unavailable Without “Work” to Perform: The DOL continues to provide examples of situations in which FFCRA leave is unavailable because employees have no work to perform. The latest examples involve seasonal workers during the off-season, and employees not working because they are not at work and receiving workers’ compensation or temporary disability benefits.

The DOL also addresses scenarios in which employees return to work from a non-working period. For example, if an employee returns to light duty or after a voluntary absence, then experiences a qualifying event, the employee might get FFCRA leave if all conditions for leave exist.

Final Thoughts: The DOL also includes new Q&As regarding staffing company headcount/leave, paying employees with entirely irregular schedules, and more details about the DOL’s non-enforcement position it announced that applies through April 17, 2020.

Keep in mind, too: As it updates these Q&As, DOL has continued to refine some of its earlier Q&As with further clarification and explanation.  As a result, employers should always utilize the latest electronic version of those Q&As when looking for answers to questions in real time.

Let me start with a toast.

A toast to the Department of Labor, which was thrust into a spotlight it didn’t seek. After Congress hastily cobbled together a bunch of confusing words on paper providing many American workers with a modest amount of paid sick leave and amending the FMLA to do the same, DOL was tasked with making sense of Congress’ ramblings in a matter of days.

Almost immediately, DOL started issuing FAQs (FAQs 1, FAQs 2, and FAQs 3) to help employers and employees better understand the expectations of the Families First Coronavirus Response Act (FFCRA) with a looming April 1 start date.

With minutes to spare, and on April fools day no less, DOL issued regulations earlier this week setting the playing field for employers as they begin to provide paid sick leave (EPSL) and paid FMLA leave (FMLA+) beginning yesterday, April 1, through December 31, 2020.

Under these circumstances, a job well done.

The new regulations cover a ton of ground — overall, they support the general requirement that employers with fewer than 500 employees must provide EPSL and FMLA+ to employees who cannot work due to reasons relating to the coronavirus pandemic and who must care for a child whose school or childcare is closed or unavailable due to the virus.

But the DOL covers a whole lot more:  in 124 pages of regulations (pdf), DOL extensively covers employer coverage, how small businesses may be exempted from the new law, regular rate calculations, intermittent leave, substitution of accrued paid leave with EPSL and FMLA+, employer/employee notice issues, and documents employees must provide to request a leave.

Much to cover here.  I can’t possibly answer every question you have, but here’s my take, which I hope eases your burden a bit.

Grab a cup of coffee, put your feet up, and let’s work through these regs:

Employer Coverage

As we knew from the law itself, the DOL has confirmed the new law applies to a private-sector employer with 499 or fewer employees and most public employers.

When does the employer calculate?  The DOL makes clear that an employer should calculate its total head count when employee’s leave is to be taken.  But the regulations also appear to grandfather an employee once the employer is covered and for the remainder of that same leave. For example, an employer has 480 employees on April 5 when an employee requests leave covered by the law. Even though the employer head count might increase to 520 on April 6, the employee still can remain on leave until they return and/or leave is exhausted. After the employee returns and needs leave again, the employee would be subject to the new head count as of the date of the new leave.  Got it?

Which employees should be counted?  In making this determination, the DOL makes clear the count is a pretty broad sweep, so employers should include: 1) full-time and part-time employees (no independent contractors are counted); 2) only those employees within the United States; 3) employees on leave; 4) temporary employees jointly employed by the employer; and 5) day laborers supplied by a temporary agency.

What about multiple corporate entities – will they be counted together?  Two or more entities are generally separate employers unless they meet the “integrated employer” test under the “classic” FMLA.  If two entities are an integrated employer under the FMLA, then employees of all entities that make up the integrated employer count to determine employer coverage for EPSL and FMLA+ purposes. Both of these tests are highly fact-specific and look to a series of factors, including common ownership, management, business purpose, and day-to-day operations. Insofar as these tests are not susceptible to simple analysis, employers with questions as to whether they should aggregate affiliated companies should consult their favorite employment counsel. [Fyi, I know one.]

Employee Eligibility

For EPSL: An employee is immediately eligible for paid sick leave

For FMLA+: Any full-time or part-time employee that has been on the employer’s payroll for 30 calendar days. The regulations explain that an employee will be considered to have been employed for at least 30 calendar days where:

  1. the employee was on the employer’s payroll for the 30 calendar days immediately prior to the date on which the employee’s leave would begin; or
  2. the employee was laid off or otherwise terminated by the employer on or after March 1, 2020, and rehired or reemployed by the employer on or before December 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or terminated.

Exception for Health Care Providers and pretty much any one with whom they work:  In the new rules, the DOL allows an employer to exclude health care providers and pretty much anyone associated with a health care provider.  The regulation defines health care provider broadly for this purpose 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 (my emphasis added).

The DOL doesn’t stop there. The regulation’s definition also includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.  This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.

Employees on furlough, laid off, or on a leave of absence are not eligible to take EPSL and FMLA+: The new rule clarifies that an employee may not take paid leave under the EPSL or FMLA+ if the employer does not have work for the employee (furlough), whether they are on other forms of leave, or have been terminated.

Reasons for EPSL

For EPSL, an employee can take up to ten days/two weeks of paid sick leave for any one of six reasons.  In its new rules, DOL had much to say about these reasons:

1. The Employee is Subject to a quarantine or isolation order

After the law was enacted, we presumed this provision would be limited in scope. After all, very few employees are themselves subject to an isolation order.  The new rules tease us by stating that a “federal, state or local isolation order” that might qualify as a reason for a leave includes a broad range of governmental orders, including orders to shelter in place or stay at home.

However, an employee may only take the leave when the employee would otherwise be able to perform the work or telework permitted by the employer had the order not been in place.  Note that if an employer’s business is shutdown as a result of an order, it is not required to provide paid leave to employees, because the employer  – not the employee – is the subject of the order to shut down.  In other words, EPSL and FMLA+ will not apply where an employer no longer has work for an employee.

Oh goodness! What the heck does this mean!?!  By now you’re screaming: Jeff, just tell me whether an employee can take EPSL or FMLA+ for a general shelter in place or business closure order!

To be honest, I’m still trying to process this one myself.  But let me point you to two examples the DOL gives in the preamble to the regulations which might give us a better idea of what’s going on here:

. . . if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.

This analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the coffee shop closed due to its customers being required to stay at home, the reason for the cashier being unable to work would be because those customers were subject to the stay-at-home order, not because the cashier himself was subject to the order. Similarly, if the order forced the coffee shop to close, the reason for the cashier being unable to work would be because the coffee shop was subject to the order, not because the cashier himself was subject to the order.

Here is an example of when a shelter in place order would provide for EPSL or FMLA+:

. . . if a law firm permits its lawyers to work from home, a lawyer would not be prevented from working by a stay-at-home order, and thus may not take paid sick leave as a result of being subject to that order. In this circumstance, the lawyer is able to telework even if she is required to use her own computer instead of her employer’s computer. But, she would not be able to telework in the event of a power outage or similar extenuating circumstance and would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.

So, is this where we have arrived — that the employee can take leave if the power goes out? If you’re scratching your head, that makes two of us. Bottom line: this covers very limited  circumstances, shelter in place orders are unlikely to support EPSL or FMLA+.

2. The Employee is advised by a health care provider to self-quarantine

DOL provides the roadmap for leave when the employee is advised to self-quarantine. In this situation, a health care provider must advise the employee to self-quarantine on a belief that one of the following apply:

a) the employee has COVID-19;

b) the employee may have COVID-19; or

c) the employee is particularly vulnerable to COVID-19.

Oh yeah, the employee in this situation also must be unable to work or telework.

3. The Employee is experiencing symptoms and seeking a medical diagnosis for COVID-19

The regulations clarify that an employee who experiences the symptoms of fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the CDC and is affirmatively taking steps to obtain a medical diagnosis, may be eligible for paid leave.  Both the symptoms and the step-taking are critical here.

Also included in the period of leave is time spent making, waiting for, or attending an appointment for a test for COVID-19.

4. The Employee is caring for an individual who has been quarantined or been advised to self-quarantine

Simply put, who’s the “individual” that the employee must care for?  The regulations tell us “individual” means either an immediate family member, roommate, or a person with whom the employee has a relationship and would be expected to care for the employee if the roles here were reversed.  So, someone who means a bit more to you than the guy at the end of the bar.

5. The Employee is caring for a child because of school, child care closures

Where the employee requests leave to care for a child whose school or place of care is closed, DOL adopts recently-issued IRS guidance by limiting EPSL and FMLA+ only to those situations where the employee must actually care for the child and no other suitable person (e.g., co-parents, co-guardians, or the usual childcare provider) is available to care for the child during the period. If another caretaker is available to care for the child, the employee is not entitled to leave.

6.  The Employee is experiencing any other substantially similar condition that may arise as designated by the Secretary of Health and Human Services

Know what DOL has to say about this reg? Nothing. Nada. Zip!

And I can’t blame the DOL, as I have no idea what this statutory provision means either.  We punt for now as we await further guidance.

How Much EPSL Can an Employee Take?

Full-Time Employees

Per the regulations, employees are “full” time and receive 80 paid sick leave hours in two situations:

First, employees are “full” time if their employer normally schedules them to work at least 40 hours each workweek.

Second, employees without a normal weekly schedule will be “full” time if the average number of workweek hours their employer schedules them to work (including leave hours they take) is at least 40 hours per workweek over the entire period of employment or the six-month period that ends when the employee takes paid sick leave, whichever is shorter.

Part-time Employees

Under the regulations, if you’re not full-time, you are considered “part” time. In the new rules, DOL creates a standard for employers to apply to determine how many EPSL hours they receive:

Standard schedule: Part-time employees with a normal weekly schedule receive an amount of EPSL that equals the total amount of hours worked in a two-week period. For example, if employees work 20 hours each week, they receive up to 40 hours under EPSL over the two-week period.

Wacky schedule: For employees who lack a normal weekly schedule, the DOL advises employers to use the total hours the employee worked during the six-month period (or the entire period of employment, if shorter) before taking leave, divide that by the number of calendar days in the period, then multiple the result by 14. For example, if an employee works 520 hours in a six-month period, that roughly equates to 2.857 hours per calendar day, so, multiplied by 14, the employee receives up to 40 hours of EPSL.

Quick note: if at the time of hiring, the employer and employee have an agreement concerning the average number of work hours each calendar day (few, if any, will), that daily number multiplied by 14 produces the amount of EPSL the employee is eligible to receive.

How Much FMLA+ Can an Employee Take?

In addition to EPSL, employees are entitled to take up to 12 weeks of FMLA leave for “a qualifying need related to a public health emergency.” This “qualifying need” is limited to circumstances where an employee is unable to work (or telework) to care for a minor child if the child’s school or place of child care has been closed or is unavailable.

As it forecast in its earlier Q&As, the DOL confirms in the regulations that FMLA+ cannot exceed a total of 12 weeks of leave during the applicable 12-month period. Any amount of FMLA “classic” leave an employee uses earlier in that same 12-month period reduces FMLA+ entitlement. For example, if during an applicable FMLA 12-month period an employee takes 4 weeks of FMLA “classic” leave, the employee has 8 weeks of FMLA+ leave left to use in that same period. Similarly, during a single FMLA 12-month period, an employee can use a combination of FMLA “classic” and FMLA+ leave, up to a maximum amount of 12 weeks.

If an employee exhausts all 12 workweeks of FMLA “classic” or FMLA+, the employee still can make use of any remaining EPSL leave that has not already been taken, in which case it is possible that the employee could end up taking 14 weeks (instead of 12).

Use of Intermittent Leave

Notably, the DOL significantly limits intermittent leave for EPSL and FMLA+. In an effort to limit the risk that an employee might spread COVID-19 to other employees, DOL limits the use of intermittent leave for those who are working onsite to two main conditions:

1) that the employee and employer agree to the use of intermittent leave; and

2) such use is limited to the employee’s need to care for a child whose school or place of care is closed, or where child care is unavailable.

In doing so, DOL slammed the door on the use of intermittent leave for any of the other five reasons under EPSL for employees working onsite.  Its reasoning is practical: where an employee is absent due to COVID-19 symptoms or diagnosis or is taking care of an individual in a similar predicament, it is not acceptable for the employee to take intermittent leave due to the “unacceptably high risk” that the employee might spread COVID-19 to other employees.  In these situations, DOL made clear that the employee must continue to take continuous paid sick leave each day until the employee either exhausts paid leave or no longer has a reason for leave from work.

In the case of telework, intermittent leave is available for employees who are taking EPSL or FMLA+, but again, only if the employer and employee can agree.  DOL contemplates that the employee and employer will “agree on an arrangements” for intermittent leave “that balance the needs of each teleworking employee with the needs of the employer’s business.”

The requirement that both the employer and employee agree raises a practical question: What if the employee is unwilling to agree to the intermittent leave arrangement proposed by an employer?

Substitution of Accrued Paid Leave and “Top Offs”

This is where the regulations get a bit confusing.

The statute requires that the employer allow the employee to first use sick leave provided for under this sick leave law, then decide to use any remaining accrued paid leave under an employer’s policy.  Per the explicit terms identified in the law, the employer cannot require the employee to use accrued leave under an employer policy first.

In its new rules, however, DOL clarified how accrued paid leave would interact with EPSL and FMLA+.

  • For the two weeks (up to 80 hours) of EPSL, the employee has the sole discretion to use EPSL or any accrued paid leave provided by the employer. The employer cannot dictate that accrued, employer-paid leave be substituted during this time.
  • However, for the initial two weeks of FMLA+, which is unpaid according to the FMLA+, the employee can elect, or the employer can require, the employee to use accrued paid leave (through an employer’s plan or policy). This means that an employee may be eligible to use EPSL during this time, and/or leave under the employer’s policy, or both to top off to 100% of their pay.  However, if the employee elects to substitute emergency paid sick leave for the first two weeks of emergency family and medical leave, an employer may not require the employee to first use another form of accrued paid leave.
  • For the remaining 10 weeks of FMLA+, if the employee is eligible due to school closures/childcare unavailability, the employer cannot require that an employee “top off” EPSL or FMLA+ with his or her own accrued paid leave unless the employee specifically agrees.  But note: The DOL’s FAQ #31 says the exact opposite, allowing employers to require that employees exhaust their accrued employer paid leave without the employee’s permission. Something has to give here: assuming that the regulations are correct, DOL will be required to update FAQ #31 in the day ahead to comport with the applicable regulations.

Employee Request to Take EPSL and FMLA+

Perhaps not surprisingly, the DOL outlines different employee notice requirements depending on the reason for leave. For employees needing leave for school closures/childcare unavailability, and where such leave is foreseeable, employees must provide notice as soon as is practicable (consistent with “classic” FMLA standards). On the other hand, when an employee needs leave for any other reason under EPSL, the standards loosen, and employers can only require employee notice after the first workday (or part of a workday) that an employee takes EPSL.

While many employers have policies requiring employees to make requests for various types of leave in writing, consistent with the spirit of recent case law under FMLA “classic,” oral notice of the initial need for leave is sufficient, as long as the employee provides enough information for the employer to determine it is an EPSL or FMLA+ qualifying reason for leave. However, nothing in the regulations prevents an employer from directing employees to then follow the employer’s usual and customary procedures from that point forward, and the DOL indicates that such expectations will typically be reasonable.

In any event, the DOL reminds employers that if an employee fails in some regard with respect to providing notice or supporting information or documentation, the employer should give the employee notice of the failure and an opportunity to correct the deficiency prior to denying the leave.

Employee Documentation to Substantiate Leave

In the regulations, the DOL tackles some of the documentation questions employers have been grappling with since the law’s enactment. Prior to being able to take EPSL or FMLA+, the employee must provide:

  1. the employee’s name
  2. the dates for which the employee requests leave
  3. the qualifying reason, and
  4. an oral or written statement that the employee is unable to work because of the qualifying reason.

The DOL also outlines what type of documentation or information employees must provide in support of various types of leave under EPSL/FMLA+:

  • Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the Order.
  • A health care provider advises an employee to self-quarantine due to concerns related to COVID-19: the name of the health care provider who advised the employee to self-quarantine.
  • Employee is caring for an individual who is subject to a quarantine or isolation order or an individual who has been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the Order to which the individual being cared for is subject, OR, the name of the health care provider who advised the individual being cared for to self-quarantine.
  • Employee is caring for a child whose school is closed or childcare is unavailable due to COVID-19 precautions: name of the child, name of the school, place of care or child care provider (each defined in the regulations) that has closed or become unavailable, and a representation that “no other suitable person will be caring for the child during the period” the employee is taking EPSL or FMLA+ for this reason.

There seems to be a theme within the rule that the DOL is permitting employers to require information, but perhaps not much actual documentation, particularly compared to FMLA “classic” documentation standards. The DOL then defers to the tax credit process through the IRS and states that employers may also request that an employee provide other documents in support of the FFCRA tax credits, though the DOL does not indicate further what such records may be. The DOL also confirms, as IRS guidance states, that an employer need not provide leave to employees who will not provide sufficient materials to support the tax credits.

What’s left to discuss?  Just a few more things . . .

DOL Poster and Employer’s Notice Requirements

Posting

The regulations do not contain significant, new employer notice requirements for the FFCRA, other than to align with its earlier Q&A, and require that employers post on their premises in conspicuous places the FFCRA’s paid leave provisions and information about how to file a complaint with the DOL for alleged violations of the law. The DOL refers to its model notice as being sufficient notice, as long as the employer either posts it in the workplace in conspicuous places, emails, direct mails, or posts it on the employer’s internal or external website. Employers can post this in a different format than the DOL’s model poster, as long as the content is accurate and readable. Given the current remote work realities of COVID-19 for many workers, employers should ensure that employees not actually reporting to the worksite each day receive the selected notice via one of the above remote methods. As noted above in this article, the regulations clarify that, regardless of whether a small employer chooses to exempt one or more employees, it still must post this general notice.

Notice Requirements

The DOL notes in the preamble to the regulations that this law does not require employers to provide employees seeking FMLA+ leave with the traditional FMLA notice of eligibility, rights and responsibilities, or written designation—but the agency also notes that employers may want to take advantage of their established practices for “classic” FMLA to send such notifications.

Editorial comment: Employers should prepare their own notices and forms and use them regularly. My friends, remember that proper documentation is one of the keys to compliance. It establishes that you have alerted employees of their rights and that you properly responded to their leave request.

Job Protection/Restoration

The regulations note that, upon return to work from EPSL or FMLA+, the employee has the right to be restored to the same or equivalent position, subject to certain limitations:

1. An employee is not protected from employment actions, such as layoffs, which would have affected the employee had they not taken leave; to deny restoration of employment, the employer must be able to show that the employee would not otherwise have been employed at the time reinstatement is requested; and

2. For FMLA+ leave only, an employer may deny job restoration to certain “key” employees (as defined under preexisting FMLA regulations), if denial of restoration is necessary to prevent substantial and grievous economic injury to the employer’s operations. Note, however, that this is a designation and option that employers must exercise only through very specific steps the FMLA outlines.

In addition, the regulations explain that employers that employ 24 or fewer employees may deny job restoration under FMLA+ (but not EPSL) where:

1. the employee took leave to care for child whose school or childcare facility was closed for COVID-19 reasons;

2. the employee’s position no longer exists due to economic conditions or changes in operating conditions caused by a public health emergency;

3. the employer makes reasonable efforts to restore the employee to an equivalent position; and

4. where such reasonable efforts fail, the employer makes reasonable efforts to contact the employee for a one-year period if an equivalent position becomes available. The one-year period begins on the earlier of the date the employee’s leave concludes or the date 12 weeks after the employee’s leave began.

Small (Fewer than 50 Employees) Business Exemption 

As we discussed in our Littler alert yesterday, the regulations provide that an employer, including a religious or nonprofit organization, with 49 or fewer employees, is exempt from providing FFCRA leave for child-care purposes when allowing such leave would jeopardize the viability of the business as a going concern. However, given that language in the regulations does specifically reference the exemption with respect to leave that is requested, we caution that employers should be judicious in applying the exemption, and prepare themselves to address exemption decisions with specific reference to employees and specific leave requests rather than a blanket decision on day one, or a decision that it simply takes the position that it is “exempt.”

To use this exemption, an authorized officer of the employer must determine that:

  1. The leave requested 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;
  1. The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
  1. There are no 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 leave, and these labor or services are needed for the small business to operate at a minimal capacity.

To elect this small business exemption, the employer must document that an authorized officer made this determination. The DOL advises that employers should retain those records in their files.  Finally, even where a small employer chooses to exempt one or more employees, it still must display the mandatory poster.

 

* This article borrows heavily from an alert that I co-authored with my Littler colleagues Alexis Knapp, Jim Paretti and Sebastian Chilco, with whom I’ve been in the trenches over the past several weeks, as together we have tackled EPSL and FMLA+ and every little morsel the DOL has tossed our way. I have learned much from them.