Just as the Families First Coronavirus Response Act (“FFCRA”) went into effect on April 1, 2020, the U.S. Department of Labor (“DOL”) issued its “Temporary Rule: Paid Leave under the Families First Coronavirus Response Act” (“Temporary Rule.”) This Temporary Rule was published in the Federal Register on Monday, April 6, 2020, and provides some helpful insight on how workers and employers will benefit from the protections offered by the Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family and Medical Leave Expansion Act (“EFMLA”), both part of the FFCRA. While the DOL has said that we should not expect more than minor technical or formatting changes prior to publication, please note that the version released is the temporary rule.
As we discussed here, here and here, the EPSLA and EFMLA were created by a time-limited statutory authority established under the FFCRA and are set to expire on December 31, 2020. Included in the Temporary Rule are a number of clarifications and new information regarding the implementation of the FFCRA. We have highlighted certain of that new information below.
What is a quarantine or isolation order?
The DOL has now clarified that a “quarantine or isolation order” includes a shelter-in-place order issued by the federal, state or local government. Accordingly, any eligible employee working for a covered employer in those states/locales with shelter-in-place or safer-at-home orders will be entitled to EPSLA and EFMLA leave, provided that the employee is not able to telework or is not working for an “essential business” or otherwise excluded from the order.
Who is an eligible child care provider?
Contrary to the text of the FFCRA and other guidance to date, the DOL has now stated that the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the employee’s child. Moreover, “place of care” has been defined to include daycare facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs and respite care programs.
Does the employer have to post the DOL notice if it is a health care provider excluding all of its employees from EFMLA and EPSLA coverage?
Yes, the DOL model notice, made available on March 25, 2020, must be posted in a conspicuous place where employees and job applicants may view it. However, an employer may choose to distribute the notice to employees by e-mail, direct mail or post the required notice electronically on an internal or external employer website to satisfy the FFCRA requirement. Employers who are covered by the EFMLA but have not been covered previously by the FMLA, can satisfy their FMLA general notice obligation through this posting.
How long can an employee be out for the purpose of obtaining a medical diagnosis?
EPSLA taken to obtain a diagnosis is limited to time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for or attending an appointment for a test for COVID-19. Accordingly, it appears that an employee’s EPSLA leave under this qualifying event would expire on the date the diagnosis is received unless the employee was advised by a health care provider to self-quarantine. Note: however, that the employee may be eligible for some other leave (e.g. under EPSLA or traditional FMLA) at that time.
Are there any limitations around who an employee is taking EPSLA leave to care for?
EPSLA leave may be taken to care for an “individual,” which is now limited to include “an Employee’s immediate family member, a person who regularly resides in the Employee’s home or a similar person with whom the Employee has a relationship that creates an expectation that the Employee would care for the person if he or she were quarantined or self-quarantined.” Interestingly, the employee is not required to provide this information as a part of the documentation required for leave. Hopefully, the final regulations will remedy this discrepancy and permit employers to add this information to the documentation request.
What documentation may the employer obtain to support an EFMLA and/or EPSLA leave?[1]
While the DOL has stated that it is generally reasonable for the employer to require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, the Temporary Rule also says that “[a]n Employer may not require the notice to include documentation beyond what is allowed by § 826.100.” Section 826.100 provides that an employee must provide the following information and documentation in connection with EFMLA and ESPLA leaves:
- The employee’s name;
- The dates for the requested leave;
- The COVID-19 qualifying reason for leave; and
- An oral or written statement that the employee is unable to work or telework because of the COVID-19 qualifying reason (note, the Internal Revenue Service’s (“IRS”) guidance indicates that to substantiate a tax credit to recover paid leave, an employer must receive the request in writing).
Additionally, depending on the type of leave requested, the employee must provide:
- The name of the government entity that issued the quarantine or isolation order;
- The name of the health care provider who advised self-quarantine; and/or
- 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 statement that no other suitable person will be caring for the son or daughter during the period for which the employee takes paid sick leave or EFMLA leave.
The employer may also request that an employee provide such additional material as needed for the employer to support a request for tax credits pursuant to the FFCRA. The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.
In order to claim tax credits from the IRS, an employer is advised to maintain the following records for four years:
(1) Documentation to show how the employer determined the amount of EPSLA and EFMLA leave paid to employees that are eligible for the credit, including records of work, telework and Paid Sick Leave and Expanded Family and Medical Leave;
(2) Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
(3) Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
(4) Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941; and
(5) Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions and information for the procedures that must be followed to claim a tax credit. For more information, please consult https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.
All records related to an EFMLA or EPSLA request must be maintained for four years, regardless of whether the leave was granted or denied. Records to be retained include all documentation provided by the employee in support of the request for leave. If the employee provided oral statements, the employer is responsible for documenting the reasons and retaining that documentation.
Must key employees be restored to their original position?
For leave taken under the EFMLA, an employer may deny job restoration to key employees, as defined under the FMLA (29 CFR 825.217), if such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer. The Temporary Rule is silent, however? with respect to the restoration of key employees under EPSLA, somewhat contrary to earlier DOL guidance.
Employers are urged to continue to monitor the situation, including, for example, the release of additional guidance from the DOL via a Final Rule, and to consult with counsel regarding specific employee circumstances.
This article does not contain all of the new or clarified information contained in the Temporary Rule. Please remember that these matters are fluid and subject to change at any time. Our articles and alerts are provided for informational purposes only. For ethical reasons, our attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
For legal advice regarding how the issues in this article relate to your circumstances, we recommend that you seek out your regular counsel who can provide appropriate context and advice for your situation.
- Kevin Stella at (317) 977-1426 or kstella@wp.hallrender.com;
- Robin Sheridan at (414) 721-0469 or rsheridan@wp.hallrender.com;
- Jon Rabin at (248) 457-7835 or jrabin@wp.hallrender.com; or
- Your regular Hall Render attorney.
Thanks to Claire Bailey, law clerk, for her assistance with drafting this article.
[1] Please note: the Hall Render Toolkit was issued prior to the release of this guidance. If you are utilizing the Request Form from the Toolkit, we urge you to consult counsel for suggested revisions given this new guidance.
Hall Render’s attorneys and professionals continue to maintain the most up-to-date information and resources at our COVID-19 Resource page, through our 24/7 COVID‑19 Hotline at (317) 429-3900 or by contacting your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
