UPDATE: KEY POINTS FROM TEMPORARY RULE ON EPSLA AND EFMLEA

On Wednesday, April 1, the Department of Labor published its temporary rule offering additional guidance on the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) that were established under the Families First Coronavirus Response Act, passed into law on March 18, 2020.

The regulations will be published in Title 29, Part 826 in the Code of Federal Regulations. Here are some additional points of clarification for employers and employees:

DEFINITIONS AND CLARIFYING GUIDANCE

1. A childcare provider can include a family member or friend who regularly cares for an employee’s child, whether the person is compensated or licensed. (Section 826.10 (a))

2. The term “son or daughter” under the EPSLA and EFMLEA is the same as under the FMLA, to include a child who is over the age of 18 but incapable of self-care because of a mental or physical disability. (Section 826.10 (a))

3. “Stay-at-home” and “Shelter-in-Place” orders qualify as a “quarantine or isolation order” for purposes of eligibility for paid sick leave. (Section 826.10 (a)) The benefit is not available, however, if the employer does not have work for the employee to perform as a result of the order or other circumstances. (Section 826.20 (a)(2))

4. Includes a definition for “telework” and provides that employees must be paid for all hours actually worked and for which the employer knew or should have known were worked by the employee; however, the provisions of Section 790.6 of the FLSA shall not apply to employees who telework due to COVID-19 reasons (relating to counting as all hours worked the difference between the employee’s first and last principal activity). (Section 826.10 (a))

5. An employee’s regular rate of pay for each full workweek shall be calculated in accordance with the FLSA based on the lesser of:

a. the six-month period ending on the date on which the employee takes leave under the EPSLA or EFLMEA; or

b. the entire period of employment. (Section 826.25)

DETERMINING THE NUMBER OF EMPLOYEES AND ELIGIBILITY

6. Employees who were terminated or laid off before March 1, 2020, but had been employed for at least thirty or more of the sixty calendar days prior to lay off or termination by the employer, are eligible for paid emergency leave if the employee is subsequently rehired or re-employed before December 31, 2020. (Section 826.30 (b))

7. Time spent by employees working for an employer through a temp placement agency that are subsequently hired by the employer will count towards the 30-day eligibility requirement for EFMLEA. (Section 826.30 (b))

8. Employers who elect to exempt “health care providers” and “emergency responders” from the benefits under the EPSLA and EFMLEA cannot prevent these employees from utilizing any earned or accrued leave they otherwise have available in accordance with the employer’s policies. (Section 826.30 (c))

9. Definition of “health care provider” is more expansive than under the FMLA to address the variety of personnel necessary to combat the COVID-19 public health emergency. Expanded definition includes diagnosing medical professionals, workers needed to keep hospitals and similar health care facilities supplied and operational, and individuals working in research, development and production of equipment, vaccines and similar items necessary to combat COVID-19. It also reserves to the highest official of a state or territory the ability to identify other categories of health care providers. (Section 826.30 (c))

10. Broad definition of “emergency responder” as anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19, including members of the military, national guard and law enforcement. It reserves to the highest official of a state or territory the ability to identify other categories of emergency responders, as necessary. (Section 826.30 (c))

11. The determination of whether an employer meets the definition of an employer under the EPSLA and EFMLEA (e.g. less than 500 employees) depends on the employer’s number of employees at the time an employee requests the benefit. (Section 826.40 (a))

a. Employees include full-time, part-time, employees on leave, temporary employees who are jointly employed and day laborers supplied by temporary placement agencies who are employed in the United States.

b. It does not include independent contractors or employees who have been laid off or furloughed and not subsequently re-employed.

c. Joint or integrated employers must combine employees in order to determine the number of employees employed for this purpose.

d. Public agencies must comply with the EPSLA and EFMLEA, regardless of the number of employees. The term includes federal, state and local governments; political subdivisions of the State; federal agencies and any interstate governmental agency.

SMALL BUSINESS EXEMPTION CRITERIA

12. Establishes the criteria for a small business (e.g. fewer than 50 employees) to be exempt from providing paid sick leave or paid emergency leave, when: (1) such leave would cause the small employer’s expense 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; (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. ((Section 826.40 (b))

a. An employer who decides to deny paid sick leave or paid emergency leave must document the facts and circumstances that meet the criteria to justify the denial.

b. These materials do not need to be sent to the Department, but rather, should be kept by the employer in its files.

AVAILABILITY OF INTERMITTENT LEAVE

13. Intermittent leave is available only if both the employer and employee agree. The employer and employee must agree on the increment of time as well. The agreement does not have to be memorialized in writing but there must be a clear and mutual understanding between the parties. (Section 826.50 (a))

a. Intermittent leave may be used by employees who are teleworking.

b. For employees who continue to report to an employer’s worksite, intermittent leave may only be taken if the paid sick leave or paid emergency leave is taken to care for an employee’s son or daughter whose school or child care center is closed or care provider is unavailable due to COVID-19 reasons.

INTERPLAY OF PAID SICK LEAVE, PAID EMERGENCY LEAVE, FMLA AND EMPLOYER’S POLICIES

14. Paid sick leave under the EPSLA may be taken concurrently with the first two weeks of unpaid emergency leave under the EFMLEA if an employee is eligible for both benefits. (Section 826.60 (a))

a. An employer’s prior use of paid sick time under the EPSLA would mean the first two weeks of emergency leave under the EFMLEA could be unpaid, unless an employer allows the employee to substitute any available accrued paid leave.

b. To the extent an employee has previously exhausted all available FMLA leave, paid sick leave under the EPSLA is still available for a qualifying reason.

15. Employers cannot require an employee to substitute any accrued paid leave during the ten weeks of paid emergency leave available under the EFMLEA. Employers can, however, agree to permit employees to substitute available accrued leave to supplement the 2/3 pay available under the EFMLA so that employees receive their full normal pay, where the law permits. Texas law permits employers to agree to such substitution. (Section 826.60 (b); Section 826.70 (f))

16. An employee’s prior use of leave under the FMLA will reduce the amount of paid emergency leave available to the employee under the EFMLEA. (Section 826.70 (b))

NOTICE REQUIREMENTS

17. An employer complies with the notice requirement under the FFCRA if it posts the poster published by the Department of Labor on March 25, 2020: (1) in a conspicuous place where employees or job applicants at a worksite may view it; (2) electronically via email distribution to employees; (3) posting the notice electronically on an employee information website; or (4) via direct mail for employees who are not able to access the notice via the other three methods. (Section 826.80)

18. The notices required under the FMLA do not apply to paid emergency leave requested under the EFMLEA but employers who must already comply with the FMLA may apply their established practices and policies for providing employees with specific notices under the EFMLEA as well. (Section 826.80)

19. Employers may require employees to provide oral notice and sufficient information to support the need for paid sick leave or paid emergency leave due to the closure of a school/childcare center or the unavailability of a child care provider as soon as practicable after the first workday missed. If an employee fails to provide notice, an employer should provide the employee an opportunity to provide any required documentation before the leave is denied. (Section 826.90)

DOCUMENTATION

20. Employees requesting leave under the EPSLA and/or EFMLEA should provide the employer with a signed statement containing the employee’s name; date(s) for which leave is requested; (3) the COVID-19 qualifying reason; and (4) a statement representing the employee is unable to work or telework for a COVID-19 qualifying reason. (Section 826.100)

a. If the leave is based on a government order to quarantine or isolate or to care for an individual subject to such order, the employee should also provide the name of the government entity that issued such order.

b. If the leave is based on the recommendation of a health care provider to self-quarantine, or to care for an individual who was ordered to self-quarantine, the employee should provide the name of the health care provider.

c. If the leave is based on the need to care for a son or daughter whose school or child/care center is closed, or care provider is unavailable, the employee should also provide: (1) the name of the child being cared for; (2) the name of the school, childcare center or child care provider that is closed or unavailable; and (3) a statement representing that no other suitable person is available for the period of leave requested.

21. An employer should retain all documentation related to either paid sick leave or paid emergency leave, whether it is granted or denied, under these provisions for at least four years. If verbal notice is provided, the employer shall reduce such notice to writing. Additional documentation may be required to qualify for available tax credits. (Section 826.140)

MAINTENANCE OF HEALTH PLAN COVERAGE

22. Employer must continue to provide health plan coverage to employees on leave under the EPSLA or EFMLEA on the same terms as employees who are not on leave. Employees shall continue to be responsible for payment of any portion of premiums while on leave as they were prior to leave. (Section 826.110)

RETURN TO WORK

23. As under the FMLA, employees utilizing paid sick leave or paid emergency leave are entitled to be restored to their positions, or an equivalent position, upon return from the leave. Employees are not protected against employment actions (like layoffs) that would have affected the employee regardless of whether leave was taken but an employer must be able to demonstrate this is the case. (Section 826.130)

24. The exemption from the job restoration requirements of “key employees” applies to the EFMLEA as under the regular FMLA. (Section 826.130 (b)(2))

25. Employers with fewer than 25 employees may not have to restore an employee to a similar or equivalent position if the following four criteria are met:

d. The employee took leave to care for a son or daughter whose school, childcare center or child care provider was closed or unavailable;

e. The employee’s position no longer exists due to economic or operating conditions that affect employment and are caused by the COVID-19 public health emergency;

f. The employer made reasonable efforts to restore the employee to the same or an equivalent position; and

g. If the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available for at least a year from the date the employee’s leave concluded or the date that is twelve weeks after the employee’s leave began, whichever is earlier. (Section 826.130 (b)(3))

ENFORCEMENT AND PENALTIES

26. Under the EPSLA, employers are prohibited from discharging, disciplining or discriminating against any employee who took paid sick time, initiated a proceeding under or related to paid sick time, or testified or is about to testify in such a proceeding. (Section 826.150)

27. Violations of the EPSLA will be treated as violations under the FLSA for failure to pay minimum wage and/or retaliation, and will be enforced in accordance with the FLSA. (Section 826.150)

28. The same prohibitions against interference, restraining, denying leave, or discriminating against an employee for exercising rights or opposing unlawful practices under the FMLA apply to the EFMLEA. (Section 826.151)

29. The same enforcement provisions under the FLMA apply except that no private action against an employer can be brought under the EFMLEA if the employer is not otherwise subject to the FMLA. (Section 826.151)

30. Employers may not deny available leave under the EPSLA or EFMLEA on the basis that it has already provided paid leave to the employee or the employee has utilized other available paid leave for COVID-19 reasons or otherwise. Employees may not request paid leave under the EPSLA or EFMLEA to apply retroactively. (Section 826.160)

31. Employers are not obligated to provide, nor are employees entitled to, compensation for any unused paid sick leave or paid emergency leave if the employee’s employment ends prior to December 31, 2020. (Section 826.160)

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