The Families First Coronavirus Response Act (FFCRA) went into effect on April 1st. That same day, the Department of Labor (DOL) issued temporary regulations to implement the new provisions of the Expanded Paid Sick Leave Act (EPSLA) and the Expanded Family and Medical Leave Act (EFMLA). The much-anticipated regulations generally follow the additional guidance provided by the DOL in the past few weeks. We previously wrote on the FFCRA on March 18, 2020 (link), and on the additional guidance provided by the DOL on March 30, 2020 (link).  For employers, the DOL regulations clarify certain new details regarding implementation of the FFCRA.  Some of the most noteworthy points include the following:

Employer Eligibility:The regulations clarify the 500-employee threshold for FFCRA to be implicated. Per the regulations, the determination is based on the number of employees at the time an employee would take leave.

“Federal, State, or Local Quarantine or Isolation Order”: One of the qualifying reasons for requesting leave under the FFCRA includes that an employee be subject to a “federal, state, or local quarantine or isolation order.” However, employers have been unsure as to exactly what kind of “order” qualified here. The DOL regulations provide some clarification noting that the quarantine or isolation orders can include a broad range of governmental orders, including orders that advise some or all citizens to stay at home or that otherwise restrict their mobility. The key question turns on whether the employee would be able to work or telework “but for” being required to comply with the quarantine or isolation order. Thus, if the employee is subject to an order, but can telework, paid sick leave may not be taken. Additionally, an employee subject to one of these orders may not take paid sick leave where the employer is closed or does not have work for the employee due to a shelter-in-place order.

“Self-Quarantine”:Another one of the qualifying reasons for requesting leave under the FFCRA is that the employee has been advised to self-quarantine and/or the employee is caring for an individual that has been advised to self-quarantine. The DOL regulations explain that self-quarantining must prevent the employee from working. An employee who is self-quarantining is able to telework, and therefore may not take paid sick leave for this reason, if

(a) his or her employer has work for the employee to perform;

(b) the employer permits the employee to perform that work from the location where the employee is self-quarantining; and

(c) there are no extenuating circumstances, such as serious COVID-19 symptoms, that prevent the employee from performing that work.

Additionally, the individual cared for by the employee must be a family member, roommate, or “other individual with a close personal relationship.”

Care for a Child:An employee may request leave if the employee has to care for a child whose school or place of care is closed or the child care provider is unavailable. If leave is taken based on this reason, the DOL regulations note that an employee is generally not allowed to take such leave if another suitable individual—such as a co-parent, co-guardian, or the usual child care provider—is available to provide the care the employee’s child needs. Additionally, the DOL is interpreting a “child” under the EPSLA and EFMLA as a child 18 years of age or younger or 18 years of age or older and incapable of self-care because of a mental or physical disability.

Intermittent Work:The DOL confirms that leave may be taken on an intermittent basis only (1) when an employee teleworks or (2) when an employee reports to a worksite and the reason for leave is due to the closure of the employee’s child’s school or place of care or child care provider being unavailable. The regulations make clear that the intermittent work (and increments that will be taken) need to be agreed upon by the employee and employer, and not just decided by the employer. A written agreement is not required, but if there is no written agreement, there must be a clear and mutual understanding between the parties that the employee may take intermittent paid sick leave or intermittent expanded family and medical leave, or both.

Documentation:An employee requesting leave must provide documentation to substantiate the request for leave. The documentation must include a signed statement containing the following information:

(1) the employee’s name;

(2) the date(s) for which leave is requested;

(3) the COVID-19 qualifying reason for leave; and

(4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.

Employers may also request “such additional material as needed for the employer to support a request for tax credits.” Employers must maintain these records for four years.

The regulations are scheduled to be published in the Federal Register on April 6th. Members of PilieroMazza’s Labor & Employment Group  are monitoring the rapidly changing COVID-19 crisis and will continue to provide updates when more guidance becomes available. We also invite you to visit the Firm’s COVID-19 Client Resource Center to access further resources that will help businesses navigate the effects of the COVID-19 pandemic.