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U.S. Department of Labor Announces New Paid Sick Leave and Expanded Family and Medical Leave Regulations

April 3, 2020

Yesterday, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued a temporary rule regarding the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA) of the Families First Coronavirus Response Act (FFCRA). The regulations created under the rule reaffirm prior DOL guidance and provide clarity regarding a number of outstanding questions. The full 124-page text of the regulations can be found here (set to be officially published on April 6, 2020). Pertinent information contained in the regulations is outlined below.

As discussed in previous webinars and eAlerts, the DOL has made clear that these benefits are only available to employees that you actually have work for. Employees who are laid off, whether due to lack of work or a “stay at home” order that has closed your business, are not entitled to these benefits but may be eligible for unemployment benefits.

With that in mind, both the EPSLA and EFMLEA permit certain employees to take paid sick leave and expanded family and medical leave to care for a child whose school or place of care is closed (or whose child care provider is unavailable) for reasons related to COVID-19. Concerning child care leave, the regulations provide the following:

  • Leave needed to care for a child. An employee is eligible for leave for this reason only when the employee needs to, and actually is, caring for their child. This will not apply if there is some other suitable person available to provide the care, e.g., another parent, guardian or usual child care provider.

  • Care for children age 18 or older. Although the EFMLEA expressly applies to those who need leave to care for a son or daughter under 18 years of age, by regulation the DOL has expanded the definition to include a son or daughter 18 years or older if they are incapable of self-care because of a physical or mental disability. This definition is the same for both EPSLA and EFMLEA leave.

  • Small business exemption. If an employer is a small business with fewer than 50 employees, an employer can deny FFCRA leave needed to care for a child if: (1) such leave would cause the employer’s expenses and financial obligations to exceed available revenue and cause the employer to cease operating at a minimal capacity; (2) the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of their specialized skills, knowledge of the business or responsibilities; or (3) the small business 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 needed for the employer to operate at a minimal capacity. If a small business owner denies FFCRA leave for one of the above-mentioned reasons, it must document the facts and circumstances that meet the criteria of the exemption to justify the denial. The employer need not send this documentation to the DOL, but rather should retain such records for its own files. 

With respect to leave under the EFMLEA, the regulations also clarify the following: 

  • Unpaid leave period. The unpaid leave period for expanded family and medical leave lasts for two weeks rather than ten days.

  • Maximum amount of leave. Even if the applicable time period for the FFCRA (April 1, 2020 to December 31, 2020) spans two 12-month leave periods under an employer’s FMLA policy, an employee is still limited to 12 weeks of leave under the EFMLEA.

  • Concurrent use of PTO. An employer may require an employee to use, or an employee may elect to use, concurrently with expanded family and medical leave any PTO under the employer’s policies that would be available for the employee to care for his or her child. In this situation, the employer must pay the employee his or her full pay, but the tax credits will be capped at $200 a day or $10,000 in the aggregate.

Concerning paid sick leave under the EPLSA, the regulations clarified and expanded on a variety of points, particularly in terms of defining eligibility:

  • Leave pursuant to a “COVID-19 quarantine or isolation order.” The DOL’s previously-released Q&A provided that employees whose employers closed their worksite before or after April 1, 2020, “pursuant to a Federal, State, or local directive” were not eligible for leave. This seemed to imply that the “quarantine or isolation order” in the EPSLA did not refer to state “stay-at-home” orders. Although the rule now clarifies that it does include “orders that advise some or all citizens to shelter in place [or] stay at home,” the DOL’s test for determining whether an employee who is subject to a stay-at-home order can take paid sick leave based on that order substantially limits the scope of eligible employees:

    • Essentially, employees can only claim paid sick leave based on a stay-at-home order if the stay-at-home order is the sole cause of their inability to work. In other words, they would have to be able to work “but for” that order. If there’s any other reason why they cannot work, they do not qualify.

    • This is true even if the other reason employees wouldn’t be able to work is directly caused by the stay-at-home order (for example, the stay-at-home order forced the business to close or the business closed because of a lack of customers due to such order).

  • Leave for individuals told by a health care provider to “self-quarantine.” Individuals will qualify for leave under this provision only if it is based on the health care provider’s belief that the individual: (1) has COVID-19; (2) may have COVID-19; or (3) is particularly vulnerable to COVID-19.

    • In addition, an employee who meets one of these criteria only qualifies for leave if they are unable to work – while they cannot work in person if in self-quarantine, they may still be able to telework.

    • The “particularly vulnerable” category would appear to include those with compromised immune systems and perhaps elderly individuals.

  • Leave based on experiencing symptoms and seeking a diagnosis. The DOL clarified the symptoms that would trigger this leave are fever, dry cough, shortness of breath or other symptoms defined by the CDC. It further clarified that:

    • This leave is limited to the time where the employee is taking affirmative steps to seek a medical diagnosis (e.g., the time spent making, waiting for and attending an appointment).

    • An employee cannot just self-quarantine without a medical diagnosis.

    • While waiting for a diagnosis, if the employee is able to telework, the employee is not entitled to leave. If the employee is unable to telework, the employee can take leave while awaiting a test result, regardless of the severity of their symptoms.

  • Leave needed to care for someone else who either is under a quarantine order or advised to self-quarantine. Individuals taking this leave need to have a “genuine need to care for the individual” – in other words, they have a relationship with the person that creates an expectation that they would care for the individual under these circumstances, e.g., a family member, roommate or similar person. It cannot simply be someone with whom the employee has no personal relationship. Note also that the individual being cared for must meet the criteria outlined above for “self-quarantine.”

  • Defining “able to telework.” An individual is “able to telework” and is precluded from paid sick leave if: (a) their employer has work for the employee; (b) the employer permits the employee to perform that work offsite; and (c) there are no extenuating circumstances that prevent the employee from performing that work. As an example of extenuating circumstances, the DOL provided that “a power outage” might prevent someone from being able to telework and would therefore entitle them to paid sick leave during the outage. 

  • Maximum amount of leave. An employee is entitled to up to 80 hours under the EPSLA. An employee does not earn any additional paid sick time if they change positions or jobs prior to December 31, 2020. 

  • Regarding an employer’s administration of paid sick leave or expanded family and medical leave under the FFCRA:

  • Notice. An employer may require an employee to comply with the employer’s usual notice procedures and requirements for taking leave absent unusual circumstances. However, if an employee fails to give proper notice, the employer should give the employee notice of the failure and opportunity to provide required documentation prior to denying request for leave.

  • Intermittent leave. No FFCRA leave may be taken intermittently absent an agreement between the employer and employee. The agreement need not be in writing; however, absent a written agreement, there must be clear and mutual understanding between the parties that the employee may take intermittent leave under the FFCRA. To prevent the spread of COVID-19, employees who must report to the worksite may only take intermittent leave to care for their child whose school or place of care is closed, or whose child care provider is unavailable, and not for any other qualifying reasons.

  • Health care provider exclusion. The regulations provide that the EFMLEA and the EPSLA allow an employer to exclude employees who are health care providers from leave. Health care providers are defined very broadly and include not only medical professionals, but also workers needed to keep hospitals supplied and operational, and workers who are involved in research, development and production of equipment, drugs, vaccines and other items needed to combat the COVID-19 public health emergency. Because this exclusion is optional, if an employer allows an otherwise-eligible health care provider to take paid leave under the EPSLA or the EFMLEA, it is eligible for tax credits.

  • FLSA-exempt status. An employer will not undermine an employee’s FLSA-exempt status by paying them only 2/3 their regular pay for paid sick leave or expanded family and medical leave.

With respect to the FFCRA’s enforcement, the regulations explain: 

  • Enforcement actions. Both employees and the Secretary of Labor may bring enforcement actions against an employer for violations of the EPLSA and the EFMLEA. Employees may file complaints for violations with the Wage and Hour Division of the DOL. The regulations also confirm that the Secretary of Labor has the same broad power to investigate potential violations as it does under the FLSA and the FMLA. 

  • However, an employee may not bring a private action against an employer under the EFMLEA if the employer, although subject to the EFMLEA, is not otherwise subject to the FMLA. Therefore, employers with under 50 employees cannot be sued by an employee in a private action under the EFMLEA.

  • Violations. If an employer is found to have violated the provisions of the Act, an employee may recover their unpaid wage for each hour of paid leave denied, plus an additional equal amount as liquidated damages and attorneys’ fees. For willful violations, the employer will also be subject to a civil penalty for each violation and liable in an additional amount, as liquidated damages, equal to the unpaid wage for each hour of paid sick leave denied. 

The regulations also make clear that they are temporary, time-limited and do not affect the Family and Medical Leave Act before or after December 31, 2020.

If you have questions about the material summarized above or any other issues surrounding the FFCRA, please contact any member of Warner’s Labor and Employment Practice Group.

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