Answers to Paid Sick Leave and Expanded FMLA Leave FAQ
On April 1, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) posted a temporary rule issuing regulations to implement paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA). The Department of Labor has also provided the poster that employers are required to post in the workplace – which must be conspicuously posted, may be distributed online, posted on the employer’s website, or directly mailed or emailed to employees. We previously discussed the expanded protections and requirements in our March 19 post which you can read here.
The pace at which the Coronavirus Disease 2019 (COVID-19) has pushed and changed the workplace mirrors its spread across the globe. Indeed, many of the amendments to the laws that regulate the workplace would have been unimaginable just a month ago – like requiring paid sick leave and paid FMLA leave for COVID-19 related reasons.
While many refer to the Emergency Family and Medical Leave Expansion Act (EFMLEA) as “paid FMLA leave,” it provides for paid FMLA leave only after two weeks of unpaid leave. Since EFMLEA is not commonly used when discussing the new provisions, we will refer to EFMLEA as “Expanded FMLA” in this post.
These unprecedented changes to the workplace bring many questions about the requirements for paid sick leave and Expanded FMLA. Let’s walk through the requirements of the FFCRA with this paid sick leave and Expanded FMLA FAQ.
Before we begin, it is important to remember that the only qualifying reason for Expanded FMLA leave is that the employee is unable to work or telework because the employee is caring for his or her child whose school or place of care (or child care provider is unavailable) due to COVID-19 related reasons.
When do the paid sick leave and Expanded FMLA requirements begin and end?
The law is effective from April 1 to December 31, 2020.
How is an employer exempt from the requirement to provide paid sick leave or Expanded FMLA leave?
The exemption is very specific and applies only if three conditions are met:
- The employer is a small business with less than 50 employees, and
- The employee’s leave is to care for his or her child whose school or place of care is closed (or child care provider is unavailable), but only if
- The requirements of FFCRA “would jeopardize the viability of the business as a going concern.”
So, even though a small employer may have less than 50 employees and determines the requirements jeopardize the viability of the business, if an employee needs leave for a COVID-19 related reason other than to care for his or her child, the exemption will not apply.
How does an employer claim the exemption from the requirement to provide paid sick leave or Expanded FMLA?
There is no application process. If the employer has less than 50 employees and the leave is to care for the employee’s child whose school or place of care is closed (or child care provider is unavailable), an “authorized officer of the business” must determine that:
- The leave would result in expenses and financial obligations that exceed available business revenues and cause the business to cease operating at a minimal capacity; OR
- The absence of the employee or employees 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
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services provided by the employee(s), and these labor or services are needed for the business to operate at a minimal capacity.
The employer is required to document that the determination to deny the paid sick leave or Expanded FMLA leave request was made based on the criteria set forth in 29 C.F.R. § 826.40(b)(1). There is no requirement to submit the determination to the WHD, but the employer must retain the records in its files for four years regardless of whether the leave was granted or denied.
Are there any employees who an employer may exclude from the paid sick leave or Expanded FMLA leave?
Yes, employers may exclude employees who are either “Health Care Providers” or “Emergency Responders.”
If you have questions as to whether the exclusion applies, please contact us.
Does Expanded FMLA provide additional weeks of FMLA?
No. Expanded FMLA provides a new qualifying reason for protected leave, not more weeks. An employee who has already used 12 weeks of leave under the FMLA is not able to use Expanded FMLA. The employee, however, may qualify for two weeks of paid sick leave.
Is it possible for an employee to get paid leave for the full 12 weeks of Expanded FMLA leave?
Yes, if the employee is unable to work or telework because the employee is caring for his or her child whose school or place of care (or child care provider is unavailable) due to COVID-19 related reasons and has not taken any FMLA leave prior to April 1, 2020.
The initial two weeks of the Expanded FMLA leave is unpaid, but the employee may choose to use paid sick leave or accrued paid time off (if available) at the same time as unpaid Expanded FMLA leave. The remaining 10 weeks of Expanded FMLA leave would be paid at two-thirds the employee’s regular rate of pay, subject to the statutory caps on the total paid out by the employer.
What kind notice does an employee need to provide to the employer?
Generally it is reasonable for an employer to require oral notice and sufficient information for an employer to determine whether the requested leave is covered leave. An employer is not permitted to require more documentation than what is allowed by the Department of Labor’s regulations.
What documentation is needed for paid sick leave or Expanded FMLA leave?
As of the date of this post, there are no forms issued by the Department of Labor or WHD for employees to request paid sick leave or Expanded FMLA leave. Even so, before taking paid sick leave or Expanded FMLA leave, the employee is required to provide the employer documentation that includes:
- Employee’s name;
- Date(s) for which leave is requested;
- Qualifying reason for the leave; and
- Oral or written statement that the employee is unable to work because of the qualified reason for leave.
Is there any other additional documentation that is required from the employee?
Yes, it depends on the qualifying reason.
Qualifying Reason 1: If the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, the employee must also provide the employer with the name of the government entity that issued the quarantine or isolation order.
Qualifying Reason 2: If the employee was advised by a health care provider to self quarantine due to concerns related to COVID-19, the employee must also provide the employer with the name of the health care provider.
Qualifying Reasons 3 and 4: As of the date of this post, the temporary rule appears to have a typographical error regarding documentation for Qualifying Reason 3 and 4.
Qualifying Reason 4 appears to require the employee to provide the employer with either the name of the government entity that issued the quarantine or isolation 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 due to concerns related to COVID-19.
Qualifying Reason 5: If the employee needs leave because the employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons, the employee must also provide the name of the son or daughter being cared for, the name of the school, place of care, or child care provider that has closed or become unavailable, and a representation that no other suitable person will be caring for the child during the period of leave.
Additional Materials: The employer may also request an employee provide additional materials as needed for it to support a request for tax credits.
Qualifying Reason 2 provides leave when the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. Does this require the employee to have COVID-19?
Not necessarily. An employee may take paid sick leave under Qualifying Reason 2 only if a health care provider advises the employee to self-quarantine based on a belief that:
- The employee has COVID-19;
- The employee may have COVID-19; OR
- The employee is particularly vulnerable to COVID-19; AND
- Following the advice of a health care provider to self-quarantine prevents the employee from being able to work, either at the employee’s normal workplace or by telework.
The CDC has identified a number of reasons unrelated to a diagnosis or possible diagnosis of COVID-19 that may cause the employee to be vulnerable to COVID-19 – for example, older adults, pregnancy, or underlying health conditions. Employers should also consider whether the employee is asking for a reasonable accommodation under the Americans with Disabilities Act if the employee is requesting leave under Qualifying Reason 2.
What records are an employer required to keep, and how long is the employer required to keep them?
An employer is required to retain all documentation for four years, regardless whether leave was granted or denied. If an employee provided oral statements to support the paid sick leave or Expanded FMLA leave, the employer is required to document and maintain such information in its records for four years.
The federal government’s response to the COVID-19 pandemic continues to evolve along with the expanding crisis facing our country. We are continuing to monitor all of the legal developments and issues that affect your family, business, and workforce, and will provide updates along the way. Please note that there are more requirements under the FFCRA and its paid sick leave and Expanded FMLA leave provisions than what is summarized here.
The Labor & Employment team of Hornthal, Riley, Ellis & Maland L.L.P. is ready to assist you in protecting your family, business, and workforce during this unique and challenging time. Legal issues and guidance are continuing to evolve, and we encourage you to contact a member of our team for any additional guidance or assistance. Our offices are continuing to remain open on our usual schedule, Monday through Friday from 8:30 a.m. – 5:00 p.m.