By: Michael Swansburg, Jr.
On April 1, 2020, the U.S. Department of Labor (“DOL”) promulgated a temporary regulation to implement public health emergency leave under Title I of the Family and Medical Leave Act (“FMLA”) and the emergency paid sick leave granted by Congress under the Families First Coronavirus Response Act, Public Law No. 116-127 (“FFCRA”). This temporary rule became effective April 2, 2020, and will run through December 31, 2020, when the authority granted to DOL by Congress is slated to expire.
To give some background, Congress enacted the FFCRA on March 18, 2020, in response to the COVID-19 pandemic, which is known to have infected more than 240,000 people and resulted in nearly 6,000 deaths in the United States alone. In terms of how the FFCRA impacts employers and employees, the law requires covered employers to provide eligible employees up to two weeks of paid sick leave at full pay, up to a maximum amount, when the employee is unable to work because the employee (1) is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to COVID-19; (3) is experiencing symptoms of COVID-19; (4) is caring for an individual who is subject to a quarantine or isolation order; (5) is caring for a son or daughter if the son’s or daughter’s school or place of care has been closed; or (6) is experiencing any other substantially similar condition specificed by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. The FFCRA also requires covered employers to provide up to twelve (12) weeks of expanded family and medical leave, of which the first two (2) weeks may be unpaid and after which the following ten (10) weeks must be paid at partial pay, when an eligible employee is unable to work because of a need to care for a son or daughter whose school or place of care is closed due to COVID-19 related reasons.
Hoping to address some confusion, DOL first clarifies that the term “son or daughter” means “children under 18 years of age and children age 18 or older who are incapable of self-care because of a mental or physical disability.” DOL then provides guidance as to its coverage of “telework,” determining that an employer will not be required to count as “hours worked” all time between the first and last principal activity performed by an employee who is teleworking for COVID-19 related reasons, even though 29 C.F.R. § 790.6 (2020) and its continuous workday guidance provide an inconsistent position for non-public health emergency scenarios.
Turning to the new § 826.20, DOL expressly states that an employee may not take paid sick leave due to a quarantine or isolation order, to care for another individual who is subject to a quarantine or isolation order, or to care for a son or daughter if the employer does not otherwise have work for the employee. In other words, an employee cannot take sick leave under the FFCRA if the employer has no work for the employee through a shutdown or otherwise. This same analysis holds true, DOL explains, even if the shutdown occurs due to a stay-at-home mandate issued under executive order. Moreover, DOL has further determined that an eligible employee make not take expanded FMLA leave to care for a son or daughter where the employer does not otherwise have work for the eligible employee. Presumably, these measures are intended to prevent workers who may receive unemployment benefits due to lack of work from receiving paid expanded sick leave at the same time.
Importantly for small-business employers and employees, the new § 826.40(b)(1) provides that “[a]n employer, including a religious or nonprofit organization, with fewer than 50 [e]mployees . . . is exempt from providing” paid sick leave under the FFCRA “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” An employer that chooses to elect this exemption must document that a determination has been made pursuant to DOL’s critera and retain such records in its regular business files.
Notwithstanding these provisions, and much like the regular conditions under the FMLA, § 826.90 of the new temporary rule says that an employer may require employees to follow reasonable notice procedures for which an employee takes paid sick leave for any reason other than caring for a son or daughter whose school or place of care is closed for reasons related to COVID-19. In that case, if the leave is foreseeable, the employee should provide the employer with notice of the need for leave as soon as practicable. DOL also advises that if an employee fails to give proper notice, the employer should “give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.”
Under the new § 826.100, employees are required to provide employers with documentation containing the following information prior to taking paid sick leave or expanded FMLA leave: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the qualifying reason for the leave; and (4) an oral or written statement that the employee is unable to work because of the qualified reason for leave. If an employee is subject to a government-issued quarantine or isolation order, he or she must also provide the employer with the name of the government agency that issued the order.
So what happens when an employee takes leave and wants to return to work? The new § 826.130 promulgated under the temporary rule holds that, in general, an employee on return from paid sick leave or expanded FMLA leave has a right to be restored to the same or an equivalent position. That said, paragraph (b) sets forth a number of limitations to that general proposition; namely, that employees are not protected fom employment actions, such as layoffs, that would have affected the employee regardless of whether he or she took leave, or if denying job restoration is necessary to prevent substantial and grievous economic injury to the employer. And employers with fewer than twenty-five (25) eligible employes may deny job restoration to an eligible employee if (1) the employee took leave to care for his or her son or daughter whose school or place of care was closed; (2) the position held by the employee at the time leave was taken no longer exists due to economic conditions caused by the public-health emergency; (3) the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held prior to taking leave; and (4) where the reasonable efforts to restore the employee to an equivalent position fail and the employer makes reasonable efforts to contact the employee during a one-year period if an equivalent position becomes available.
Finally, §§ 826.150 and 826.151 of the new temporary rule reinforce various prohibited acts, such as discharging, disciplining, or discriminating against an employee because the employee took paid sick leave or expanded FMLA leave, or filed a complaint or instituted a proceeding related to the new laws governing paid sick leave or expanded FMLA leave. Employers who engage in such acts will be subject to enforcement actions under the Fair Labor Standards Act, in the event of paid sick leave, or the FMLA, in the event of expanded FMLA leave.
To be sure, this massive new rule provides major guidance to employers and employees who are still trying to wrap their hands around the flurry of new laws passed by Congress in recent days due to COVID-19. But there is a ton of information contained within this document alone, and more will be written about it in the coming days. To the extent they can, employers should tread lightly through these new rules, and should consult with an attorney about how to best navigate this unprecedented experience and prevent a possible infraction of the law on top of an already-difficult economic situation.