Legal Impact of Coronavirus

By Allison C. Pearson

We previously reported that the Families First Coronavirus Response Act (FFCRA) requires employers with 500 or fewer employees to provide two new types of paid leave:  1) two weeks of sick leave under the Emergency Paid Sick Leave Act; and 2) twelve weeks of extended family medical leave under the Emergency Family and Medical Leave Expansion Act.  These provisions went into effect on April 1, 2020. The Department of Labor has now issued regulations providing clarification on these paid leave requirements. Below, we address some of the most common questions we have received under the new regulations.  

Am I required to pay for leave if an employee is able to telework?

 No. To be entitled to paid leave, an employee must be unable to work either at the normal workplace or via telework. An employee is able to telework if:  1) his or her employer has work for the employee; 2) the employer permits the employee to work from the employee’s location; and 3) there are no extenuating circumstances that prevent the employee from performing that work.[1]  Examples of extenuating circumstances include if the employee is experiencing serious symptoms of COVID-19 or if the employee’s power went out and he or she was unable to use any electronic devices to work.  

The regulations encourage employers to allow flexibility in normal work schedules while employees telework. To that end, the Department of Labor suspended the usual principle of the “continuous workday” for employees teleworking during the COVID-19 crisis. For example, if an employer and employee agree that the employee will telework in intervals from 7-9 a.m., 12-3 p.m., and 7-9:30 p.m. each day, the employee must be paid for all 7.5 hours worked, but would not be entitled to payment for the 14.5 hours from when the employee began work at 7 a.m.until she ended work for the day at 9:30 p.m.

Am I required to pay for leave if my business has been ordered to close?

No. An employee is only entitled to paid leave for one of the qualifying reasons if he would otherwise be able to perform work.  In other words, an employee is not entitled to paid leave if the employer does not have work for the employee to perform, including if the employer has been ordered close its business as a result of COVID-19.[2]  

What documentation can I request from employees requesting paid leave? 

An employer may require the following documentation from an employee requesting COVID-19-related leave: 1) the employee’s name; 2) dates for which leave is requested; 3) qualifying reason for the leave; and 4) oral or written statement that the employee is unable to work due to the qualifying reason.[3]  

Employers may also require additional documentation depending on the employee’s reason for requesting leave: 

• § If ordered to quarantine (or caring for someone subject to such an order), the name of the government entity that issued the quarantine or isolation order.
  
• § If advised to self-quarantine (or caring for someone who has been so advised), the name of the health care provider (under the standard FMLA definition) who advised the employee to do so.
  
• § If caring for a son or daughter due to school closure or lack of childcare: 1) the name of the son or daughter; 2) the name of the school, place of care, or child care provider that is closed or unavailable; and 3) a representation that no other suitable person will be caring for the son or daughter during the leave period.[4]
  

How do the paid sick leave and expanded family medical leave provisions intersect?

 When an employee takes paid sick leave and expanded family medical leave both to care for a son or daughter for whom childcare is unavailable, the leave periods run concurrently.  The employee would be paid for the first two weeks under the Emergency Paid Sick Leave Act, and would be paid for the remaining ten weeks under the Emergency Family and Medical Leave Expansion Act for a total of twelve weeks.[5]

If, however, an employee takes two weeks of paid sick leave for some reason other than caring for a son or daughter for whom childcare is unavailable, and then takes expanded family medical leave to care for such a son or daughter, the paid leave periods do not run concurrently.  Thus, the first ten days of the expanded family medical leave would be unpaid.[6]  

Example:  An employee takes two weeks of paid sick leave because the employee tests positive for COVID-19.  The employee then needs to take expanded family medical leave to care for a son or daughter whose school is closed. The employee would be paid for the two weeks of sick leave, and then the first 10 days of the expanded family medical leave would be unpaid. The employee may elect to use other forms of paid leave from the employer (such as PTO) during the unpaid period.  

What if an employee has already taken FMLA leave for a standard FMLA qualifying reason?

The regulations state that any period of expanded family medical leave will count toward an employee’s 12 weeks of standard FMLA leave.[7]  If an employee has already exhausted 12 weeks of FMLA for the birth of a child or any other covered reason, the employee may not take expanded family medical leave.[8]  An employee would still be entitled to two weeks of paid sick leave even if they have exhausted FMLA leave.[9]  

Can an employee supplement paid leave with other forms of leave?

Yes. An employer may allow employees to supplement expanded family medical leave with other forms of accrued leave. For example, an employer can allow employees to supplement expanded family medical leave by substituting one-third hour of accrued vacation leave for every hour of expanded family medical leave.[10]  

How do I calculate an employee’s paid leave benefit?

Paid leave under the FFCRA is based on the weighted average of the employee’s regular rate over the last six months, or if the employee has been employed less than six months, then for the entire employment period. The average regular rate must be weighted according to the number of hours worked in each week.[11] The regular rate calculation in each week is the same as under the Fair Labor Standards Act. Thus, any commissions, tips, piece rates, non-discretionary bonuses, etc. that would normally be included in the regular rate calculation should be included in calculating the employee’s paid leave rate.[12] 

Which “health care providers” and “emergency responders” may be exempted from the paid leave requirements? 

The FFCRA provides that employers whose employees are “health care providers” or “emergency responders” may exclude such employees from the paid sick and family leave requirements. The regulations greatly expand the definition of “health care provider” beyond the standard FMLA definition for the purpose of this exemption only. It does not expand the definition of a “health care provider,” found elsewhere in the FMLA. For the purposes of this exemption, “health care provider” includes: 

• anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. 
• any individual employed by an entity that contracts with any of the institutions described above to provide services or to maintain the operation of the facility where that individual’s services support the operation of the facility. 
• anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. 
  

“Emergency responder” is also defined broadly and includes: 

• anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. 

How can a small business with fewer than 50 employees claim exempt status from these provisions?

Employers with fewer than 50 employees are exempt from providing paid sick leave and expanded family medical leave if an authorized officer of the business determines that “the imposition of such requirements would jeopardize the viability of the business as a going concern.”  The regulations outline three scenarios when a business may fit that criteria:

1) The paid sick leave and expanded family medical leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at minimal capacity; 

2) The absence of the employee(s) requesting leave would entail a substantial risk to the financial health or operational capacity of the business because of the lack of their specialized skills, knowledge of the business, or responsibilities; or

3) 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) requesting paid sick leave or expanded family medical leave, and these labor or services are needed for the small business to operate at minimal capacity.

 A small business that elects to take the exemption must document that determination and maintain documentation supporting the exemption according to the criteria above.  The employer is not required to submit any documentation to DOL.[13]  

Allison Pearson is an associate in the Labor and Employment Practice Group. Allison advises employers in all aspects of labor and employment laws including compliance with Title VII of the Civil Rights Act of 1964, the Family Medical Leave Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the National Labor Relations Act, and the Occupational Safety and Health Act.