USDOL Publishes Temporary Regulations Interpreting FFCRA

Update April 9: This blog has been updated to reflect additional guidance and final temporary regulations published by the Department of Labor.

Update April 3: This blog has been updated to reflect additional guidance published by the Department of Labor.

On April 1, 2020, contemporaneous with the effective date of the Families First Coronavirus Response Act (FFCRA or the Act), the Department of Labor (USDOL) published temporary regulations concerning interpretation and implementation of that Act. This update highlights how the regulations, in a few instances, change previous USDOL guidance and provides a summary of those parts of the regulations that provide clarification on FFCRA issues that previously remained subject to conflicting interpretations. Readers may navigate within this client update by clicking on the topics below.

• Major Change: "Orders of Quarantine or Isolation" Now Include Stay-At-Home Orders
• Mandatory FFCRA Notices May Be Distributed Electronically
• Healthcare Provider’s Advice Must Be Specific to the Patient
• Sick Leave to Care for Others is Limited to Family Members and Roommates
• Unpaid Family Members and Friends Are Child Care Providers for Purposes of Both EPSLA Sick Leave and EFMLEA Extended FMLA Leave
• Unresolved Questions Concerning Concurrent Use of EFMLEA With Other Forms of Leave
• Unresolved Questions Concerning Intermittent Leave for Exempt Employees

Major Change: "Orders of Quarantine or Isolation" Now Include Stay-At-Home Orders

Among the more surprising provisions in the regulations is the USDOL’s expansive interpretation of what constitutes an “order of quarantine or isolation” for the purposes of an employee qualifying for the two weeks of sick leave available under the Emergency Paid Sick Leave Act (EPSLA).

The USDOL regulations say the statutory term “orders of quarantine or isolation” includes “containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work[,]” including “when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine.” Accordingly, employees who are prevented from reporting to work because of a federal, state or local order to “shelter in place” may take up to two weeks of leave under the EPSLA.

This is a marked departure from previous law and triggers a careful (and sometimes complicated) factual analysis as to when an employee who is at home and not working, is entitled to EPSLA leave. The laws of each state (summaries of which are available here) govern the procedure by which an individual may be subject to an order of quarantine or isolation. Orders issued under those laws are specifically directed to individuals, rather than members of a general population, and applicable laws provide certain due process rights to the individuals subject to those orders.

Because the various “shelter in place” orders issued by governors and other officials across the United States did not meet the requirements of these governing laws, it was widely presumed by legal experts (including DWT) that they were outside the scope of the EPSLA’s definition of an “order of quarantine or isolation.” The USDOL’s regulations reject that interpretation in favor of one with a much more expansive scope.

Nevertheless, it is not the case that every individual working in a jurisdiction subject to a “shelter in place” order is automatically entitled to two weeks of sick leave under the EPSLA. The employer must have work for the employee to perform before the employee can request paid leave from that work. An employer who has temporarily suspended business, furloughed employees, or significantly reduced operations as a result of COVID-19 – or even as a result of a shelter-in-place order – is under no duty to extend paid leave to employees under the FFCRA (however, the employee may qualify for unemployment insurance benefits).

The USDOL’s Supplementary Information accompanying the FFCRA’s temporary regulations make clear that “an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking as described therein. The question is whether the employee would be able to work or telework ‘but for’ being required to comply with a quarantine or isolation order” (emphasis added).

Accordingly, employers – especially those operating essential businesses – should review the language of the shelter-in-place orders specific to the jurisdictions in which they operate in order to determine whether compliance with the mandatory elements of those orders prevents an employee from working or teleworking.

Mandatory FFCRA Notices May Be Distributed Electronically

Effective April 1, 2020, employers must post a notice of FFCRA rights for employees. The USDOL published a model Notice of Employee Rights under the FFCRA for posting in the workplace.

As much of the workforce throughout the United States is not currently reporting to work, this posting requirement was of marginal utility in advising employees of the availability of emergency paid leave. The regulations make clear that employers “may satisfy this [posting] requirement by emailing or direct mailing this notice to Employees, or posting this notice on an Employee information internal or external website.”

Employers should still post a physical poster in a readily accessible place at its worksite(s) if they elect to give e-notice.

Healthcare Provider's Advice Must Be Specific to the Patient

An employee may also qualify for sick leave under the EPSLA if that employee “has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.”

At first blush, this appeared to be a low bar to clear, in light of the fact that public health officials have been routinely encouraging individuals throughout the United States to practice social distancing and self-quarantine to the greatest extent feasible. The USDOL’s interim regulations make clear that advice from a health care provider generally applicable to the public at large is insufficient to trigger an employee’s entitlement to paid sick leave under the EPSLA. Rather, that advice must be based on the provider’s belief (i) that the employee has or may have COVID-19, or (ii) that the employee is particularly vulnerable to COVID-19 (due to the patient’s membership in a vulerable population based upon, for example, an underlying health condition or advanced age).

Sick Leave to Care for Others Is Limited to Family Members and Roommates

An employee may also take paid sick leave under the EPSLA to care for an “individual” who has been quarantined. The regulations make clear that the definition of that term is limited to “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 the person if he or she were quarantined or self-quarantined.”

Unpaid Family Members and Friends Are Child Care Providers for Purposes of Both EPSLA Sick Leave and EFMLEA Extended FMLA Leave

Under a separate FFCRA law, the Emergency Family and Medical Leave Expansion Act (EFMLEA), an employee is eligible to take up to twelve weeks of leave to care for a child whose school or care center has been closed, or whose regular child care provider is unavailable due to COVID-19.

The relevant provision of the EFMLEA limits the definition of a child care provider to someone “who receives compensation for providing child care services on a regular basis.” The relevant provision of the EPSLA (discussed above) contains no such limiting language, suggesting that the two weeks of sick leave under the EPSLA could be used when any care provider – paid or unpaid – was unavailable due to reasons related to COVID-19.

The USDOL’s regulations extend that application to all leave under the FFCRA, making clear that, for purposes of an employee’s eligibility to take paid leave due to care provider unavailability, “the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the Employee’s child.”

Unresolved Questions Concerning Concurrent Use of EFMLEA With Other Forms of Leave

The USDOL has provided conflicting guidance concerning whether employers may require employees to take paid leave under existing policies concurrently with leave under the EFMLEA. Its answer to question 33 on its Questions and Answers webpage states unequivocally that an employer may do so. However, this is contradicted by USDOL's own regulations, which state that "neither the Eligible Employee nor the Employer may require the substitution of paid leave" during an employee's use of partially paid leave under the EFMLEA, and that, absent an agreement between the employee and the employer concerning the application of other forms of paid leave, "the Employee will remain entitled to all the paid leave which is earned or accrued under the terms of the Employer's plan for later use" once leave under the EFMLEA is exhausted. In addition, the regulations state that during the unpaid portion of EFMLEA, the employee has the option to use paid leave, including EPSLA. Because the USDOL's regulations have greater legal force than advisories such as those set forth in the Questions and Answers, employers are advised not to draw from an employee's PTO or vacation bank while the employee is taking leave under the EFMLEA, absent and express agreement with the employee.

The USDOL’s Questions and Answers also make clear that an employer may not require concurrent use of other forms of leave with the two weeks of paid sick leave available under the EPSLA – although the employer and employee are free to agree to such use. The regulations specify that employers may not require an employee to use any form of previously available paid or unpaid leave “before” or “prior to” taking sick leave under the EPSLA.

Employees have the right to elect to use the two weeks of paid leave under the EPSLA, or other available accrued PTO, during the unpaid portion of leave under the EFMLEA. If an employer agrees, employees can choose to "top-off" the paid portion of both forms of leave with available PTO to supplement the pay they receive under the FFCRA up to their normal income. Employees cannot receive more than 100 percent of their regular pay through the use of PTO in combination with either form of leave under the FFCRA.

Employers are encouraged to consult with counsel on these points, not only to determine whether additional guidance has become available, but to ensure that practices on this front are in accordance with applicable state and local law (in California, for example, employers may not compel the use of sick leave).

Unresolved Questions Concerning Intermittent Leave for Exempt Employees

The USDOL’s temporary regulations also expand upon previously available guidance concerning the availability of intermittent leave. Specifically, employers and employees may agree to use of intermittent leave under the EFMLEA and the child-care provision of the EPSLA – but intermittent leave is unavailable to an employee who is taking sick leave for any other reason if such leave would involve the employee reporting to the workplace. Rather, due to considerations of public health, “Once the Employee begins taking Paid Sick Leave for one or more of such reasons, the Employee must use the permitted days of leave consecutively until the Employee no longer has a qualifying reason to take Paid Sick Leave.”

For those employees who are able to work from home, “the Employer and Employee may agree that the Employee may take Paid Sick Leave for any qualifying reason or Expanded Family and Medical Leave intermittently, and in any agreed increment of time (but only when the Employee is unavailable to Telework because of a COVID-19 related reason).”

Employers should take care in the implementation of an intermittent leave schedule with exempt salaried employees. Under the Fair Labor Standards Act, the rule remains that exempt employees must be paid their regular salary for any week in which work is performed, with some very limited exceptions. The fact that the USDOL has expressly acknowledged in the Supplementary Information accompanying these interim regulations that an employee’s use of leave under the FFCRA “should not be construed as undermining the employee’s salary basis” is encouraging, but the details of these arrangements remain unclear.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.