As a reminder the Emergency Paid Sick Leave (EPSLA) and Emergency Paid Family Leave Act (EFMLA) provisions of the Families First Coronavirus Response Act (FFCRA) take effect today, April 1, 2020. If employers have not already posted and provided remote workers with copies of the mandatory notice they should do so immediately. A copy of this poster is available at: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf
The Department of Labor has published guidance on how it will be implemented. As prior alerts have already discussed this program, this alert will only highlight new guidance that the Department of Labor’s regulations provide.
Telework
Employers are reminded that they must keep track of all hours that employees work, even for telework, and all minimum wage and overtime rules remain in effect for telework. However, the regulations acknowledge that “an employer is not required to compensate employees for unreported hours worked while teleworking for COVID-19 related reasons, unless the employer knew or should have known about such telework.” See, e.g., Allen v. City of Chicago, 865 F.3d 936 (7th Cir. 2017), cert. denied, 138 S. Ct. 1302, 200 L. Ed. 2d 474 (2018). In this respect, employers are reminded that they should have policies in place for employees to track all hours worked, even while the employee is working at home.
The Department of Labor encourages employers to have flexible telework arrangement and, where feasible, permit employees to work unconventional times while tending to family and other responsibilities. To facilitate more flexible work arrangements the Department of Labor is loosening the contiguous work regulation (29 CFR 790.6) which requires employees to be compensated from the time they do their first to last principle activity. Instead, an employer may permit a more flexible arrangement, such as 7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays, and only compensate the employee for the 7.5 hours actually worked, and not the 14 hours between the employees first and last principle assignment. The contiguous workday regulations remain in effect for the employees working on site. However, for any employees who receive minimum wage, employers should be aware that New York Labor Law spread of hours pay would apply to any employees who start and end time exceeds 10 hours, even if they are working a split shift, or non-consecutive hours.
Workers who can telework are not entitled to take any paid leave benefit. The regulations explain that an employee is considered able to telework if: “(a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work.”
EPSL
A. Leave Because Employee is Subject to A Federal, State or Local COVID-19 Quarantine or Self-Isolation Order
The regulations clarify that a quarantine or self-isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine or otherwise restrict their movements. An employee is entitled to this leave when “but for” the federal, state or local order, the employee would be permitted to work. However, this law does not apply if the employer does not have work for the employee. For example, if a store was required to close because of a downturn in business, the cashier for this store who is also subject to a stay at home order is not entitled to paid leave because there is no work for the cashier to do. Employees taking this leave are entitled to their full pay, capped at $511 per day.
B. Employee Is Unable to Work Because He or She Has Been Advised by a Healthcare Provider to Self-Quarantine
The regulations explain that the advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. Employees taking this leave are entitled to their full pay, capped at $511 per day.
C. Employee Is Experiencing Symptoms of COVID-19 and Seeking a Medical Diagnosis
Symptoms that could trigger need for this leave are fever, dry cough, shortness of breath or other COVID-19 symptoms identified by the Centers for Disease Control (CDC). Leave taken for this reason is limited to the times that the employee is affirmatively taking steps to seek a diagnosis. The employee may not take sick leave if they are experiencing symptoms of COVID-19 and do not obtain a medical diagnosis. Once an employee obtains a positive COVID-19 diagnosis, they may continue to obtain leave, if, the medical professional advised them to self-quarantine. An employee waiting on test results may take leave as long as they cannot telework. An employee who does not qualify for COVID-19 testing may take leave if the medical professional advises the employee to self-quarantine and the employee is unable to telework. Employees taking this leave are entitled to their full pay, capped at $511 per day.
D. Caring for an Individual Who is Either: (1) subject to a federal, state, or local order of quarantine or isolation; or (2) has been advised by a healthcare advisor to self-quarantine.
This leave only applies if “but for” the employees need to care for an individual who meets these qualifications the employee would be able to perform work for his/her employer. Accordingly, an employee may not take leave if the employer does not have work for the employee. Also, the employee must have the type of relationship that would create an expectation that the employee would care for the individual, such as an immediate family member or roommate, and there must be a genuine need for the employee to care for the individual. Employees taking leave for this reason is entitled to two-thirds pay capped at $200 per day.
E. Care for a Son or Daughter Whose School or Daycare is Closed
Employee may only take this leave if the employer has work for the employee to do. Also, the employee must be caring for his or her child. If there is a suitable co-parent, co-guardian, or other childcare provide available to care for the child, the employee is not entitled to this leave. Employees taking leave for this reason is entitled to two-thirds pay capped at $200 per day.
F. Employees with Variable Schedules
The regulations explain that EPSLA for full-time employees is equal to a total of 80 hours. A full-time employee is defined as an employee normally scheduled to work at least 40 hours each workweek. For employees that work part-time or have a variable schedule, employers should provide leave equal to 14 times the average number of hours that an employee was scheduled per calendar day over the 6-month period prior to taking leave. An employer may also use twice the number of hours that an employee was scheduled to work per workweek, averaged over a 6-month period. If an employee has been employed for less than 6 months, the regulations explain the part-time employee should be paid “fourteen times the expected number of hours the employee and employer agreed at the time of hiring that the employee would work, on average, each calendar day.” If no expectation was set, the employee is entitled to fourteen times the average number of hours each calendar day the employee worked over their period of employment.
EFMLA
The regulations explain that the reason to permit an employee to take the extended EFMLA leave is the same reason that an employee may need to take EPSL when they must care for their son or daughter because their child’s school or daycare is closed. Consistent with the FMLA, the Department explains that a son or daughter “includes children under 18 years of age or 18 years of age or older and incapable of self-care because of a mental or physical disability.” Employees taking leave for this reason is entitled to two-thirds pay capped at $200 per day, for a total of $10,000. For employees with variable or part-time schedule (less than 40 hours per week) employees should apply the same rules used under the EPSL. The first two weeks of leave are unpaid, although the employee may use any other paid leave available during this time, including EPSL.
The amount of EFMLA leave permitted will be reduced by the amount of FMLA leave already taken in the past calendar year. Employees may not exceed 12 weeks of either FMLA or EFMLA leave in the 12-month FMLA year (which is set in the employer’s existing FMLA policy). Also, employees may not take more than 12 weeks of EFMLA leave between April 1, 2020 and December 31, 2020.
With respect to enforcement, employees may not bring a private right of action against an employer with less than 50 employees who are not otherwise subject to the FMLA. However, the Department of Labor may still bring an action against a small employer to enforce these regulations.
Applicable to Both Leaves
Exemption for Employers with Less than 50 Employees
The statute provides that employers with less than 50 employees may deny an employee EPSL or EFMLA to care for the employee’s son or daughter when:
(1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
(2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
(3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.
For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively. Employers must document the facts supporting its denial of the request for EPSL or EFMLA.
Intermittent Leave
The regulations permit the use of these leave intermittently only when the employer and employee agree that this leave may be intermittent. However, intermittent leave is not permitted where it would not further the needs to social distancing or help prevent the spread of COVID-19. Accordingly, employees who are ordered to quarantine, have symptoms and are seeking a diagnosis, or are caring for someone with COVID-19 may not take intermittent leave if they report to work.
Documentation to Obtain Leave
An employee must provide his or her employer documentation in support of paid sick leave or expanded family and medical leave. Such documentation must include a signed statement containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. All documentation relating to the request for leave and acceptance or denial of the request must be retained for at least 4 years.
Return to Work
Although the statute provides that employees using this leave are entitled to return to work, this statute does not protect an employee from an employment action, such as a layoff, that would have affected the employee regardless of whether or not leave was taken.
Tax Credit
The IRS has also posted guidance on how employers can try to obtain the tax credit for these paid leaves immediately. We recommend that businesses consult with their tax advisors and accountants to discuss any issues relating to tax credit and payments.
The attorneys in Forchelli Deegan Terrana LLP’s Employment & Labor practice group will continue to keep you updated on any changes to your requirements as an employer as updates become available. Should you have any questions, or wish us to assist you with the loan application, do not hesitate to contact me at the below contact information.
Battling the novel coronavirus is difficult for everyone. We are here if you need us. With best wishes for your, and your family’s health and safety.
Gregory S. Lisi
Partner-in-Charge, Employment & Labor practice group
GLisi@Forchellilaw.com | 516.248.1700