New DOL Regulations Provide Additional Information to Employers Regarding the FFCRA

Miller & Martin PLLC Alerts | April 03, 2020

Author: Stacie Caraway

As a parting April Fool’s Day gift late on April 1 – and right on time per the timetable set forth in the Families First Coronavirus Response Act (“FFCRA”) – the Department of Labor (“DOL”) issued its 40 pages of temporary regulations (along with 84 pages of additional comments) concerning the two FFCRA leave sections, which are the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”).

As anticipated, most of the substantive provisions were addressed in the DOL's “Families First Coronavirus Response Act: Questions and Answers” FAQ document that we previously summarized here. Those who are coming to the party late also may want to review our alert titled "The Families First Coronavirus Response Act As Signed Into Law," which outlines the general provisions of the FFCRA.

We have created two alerts for you regarding these new temporary regulations.

Top 12 Regulations for Employers

  1. “Childcare providers” do not have to be paid IF they are a “family member or friend who regularly cares for the employee’s child.”

  2. “Quarantine Orders” include “when a federal, state, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.”

  3. An Employee subject to a quarantine or isolation order may not use Paid Sick Leave or Expanded FMLA Leave where the Employer does not have work for the Employee as a result of the order or other circumstances. So, if YOU as the employer are CLOSED due to the same quarantine or shelter-at-home order which is causing your employees not to be able to work or telework, these employees do not qualify to use the new Paid Sick Leave or Expanded FMLA Leave benefits.

  4. The “individuals” an employee may “care for” who are under a medically advised or governmental quarantine order are “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 [such as an immediate family member or a roommate]. For this purpose, ‘individual’ does not include persons with whom the Employee has no personal relationship.”

  5. Regarding employees who request leave to care for a child whose school or child care provider is closed or otherwise unavailable due to COVID-19 related reasons, the new regulations provide that an “employee has a ‘need’ to take Expanded FMLA Leave for this purpose only if no suitable person is available to care for his or her Son or Daughter during the period of such leave.” (Please see item 12 below regarding Documentation for more on this point.)

  6. There is one point on which the new regulations differ from the information previously provided in the DOL FAQ document – and that is regarding the “concurrent” use of leave which is already provided under the employer’s existing leave policies.

    The FAQ document said that “both the employee and the employer had to agree” before an employee could either use such leave “concurrently” with Expanded FMLA Leave or use such leave to “supplement” their 2/3 partial pay as provided under the Expanded FMLA section of the FFCRA.

    The new temporary regulations (more in line with the “regular FMLA”) state that “Section 2612(d)(2)(A) of the FMLA shall be applied, provided however, that the Eligible Employee may elect, and the Employer may require the Eligible Employee, to use only leave that would be available to the Eligible Employee for [the purpose of caring for a child whose school or regular child care is closed or otherwise unavailable due to COVID-19 related reasons] under the Employer’s existing policies, such as personal leave or paid time off. Any leave that an Eligible Employee elects to use or that an Employer requires the Eligible Employee to use would run concurrently with Expanded FMLA Leave taken under this section.

  7. The new regulations did not change the prior FAQ document information regarding intermittent use of Paid Sick Leave and Extended FMLA Leave. (Please see items 10 and 11 of our prior FFCRA FAQ Summary linked here for further detail on this point.)  

  8. The new regulations also provide further clarity on the interaction between Paid Sick Leave and Expanded FMLA Leave.

    Specifically:

    (a).  Employees may choose to use Paid Sick Leave to run concurrently with Expanded FMLA Leave during the first two (2) weeks when Expanded FMLA Leave is otherwise unpaid.

    (b).  However, if an employee has already used some or all of his/her Paid Sick Leave for a purpose which is not also covered by Expanded FMLA Leave (which would be any of the 6 purposes outlined on the DOL FFCRA poster aside from #5 “caring for a child whose school or place of care is closed or child care provider is unavailable due to COVID-19 related reasons”), then the Expanded FMLA Leave either will be unpaid OR the employee may choose to substitute “pre-existing paid leave provided by the Employer which has been earned or accrued pursuant to the established policies of the Employer to run concurrently with the Expanded FMLA Leave.”

    “If the Eligible Employee does not elect to substitute paid leave for unpaid Expanded FMLA Leave under the above conditions and circumstances, the Eligible Employee will remain entitled to any paid leave that the Eligible Employee has earned or accrued under the terms of his or her Employer’s plan.”

  9. The new regulations also affirm that “neither the Employee nor the Employer may require the Employee to ‘substitute’ the Employee’s accrued paid leave under the Employer’s paid leave plan during an Expanded FMLA Leave” (since unlike “regular FMLA leave” during which employers MAY make such a requirement) “Expanded FMLA Leave is not unpaid.”

    Both the Employer and the Employee may agree that the Employee may supplement his/her Paid Sick Leave and Expanded FMLA Leave benefits with existing employer-provided vacation, sick leave, or other PTO.
    1. There was also a question based on the text of the FFCRA as to whether or not employers were free to change their existing paid leave policies after this new law went into effect on April 1, 2020 in order to take this new law into consideration, perhaps by transferring or “designating” some existing paid leave so as to satisfy the requirements of the FFCRA.

      The temporary regulations make it clear that this is not an option for employers by stating that “An Employee’s entitlement to, or actual use of, Paid Sick Leave under the EPSLA is in addition to—and shall not in any way diminish, reduce, or eliminate—any other right or benefit, including regarding Paid Sick Leave, to which the Employee is entitled under any of the following: (i) another Federal, State, or local law, except the FMLA as provided in § 826.70; (ii) a collective bargaining agreement; or (iii) an Employer policy that existed prior to April 1, 2020.

    2. Regarding the timing of employee notice of the need to use one of the two new types of paid leave provided under the FFCRA:

      “An Employer may require an Employee to follow reasonable notice procedures after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave for any reason other than to care for a child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19 related reasons. Whether a procedure is reasonable will be determined under the facts and circumstances of each particular case. Nothing in this section precludes an Employee from offering notice to an Employer sooner; the Department encourages, but does not require, Employees to notify Employers about their request for Paid Sick Leave or Expanded FMLA Leave as soon as practicable.

      “In any case where an Employee requests leave in order to care for the Employee’s child whose school or place of care is closed or childcare provider is unavailable due to COVID-19 related reasons, if that leave was foreseeable, an Employee shall provide the Employer with notice of such Paid Sick Leave or Expanded FMLA Leave as soon as practicable.

      “If an Employee fails to give proper notice, the Employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.”

      Notice may not be required in advance and may only be required after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave or Expanded FMLA Leave. After the first workday, it will be reasonable for an Employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for notice to be given by the Employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the Employee is unable to do so personally.”

      “Generally, it will be reasonable for an Employer to require oral notice and sufficient information for an Employer to determine whether the requested leave is covered by the FFCRA. An Employer may not require the notice to include documentation beyond what is [described in item 12 below].”

      “Generally, it will be reasonable for the Employer to require the Employee to comply with the Employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”


    3. We have intentionally saved the “best (and longest) for last” – as far as answering the “most burning question asked by our employer clients over the past 2 weeks.”
      WHAT ABOUT DOCUMENTATION???

      Unlike the DOL's FAQ document (which ironically DID at one point provide additional detail regarding employee documentation requirements but mysteriously removed this between March 27 and March 30), the new regulations DO provide employers with some much-requested detail as to WHAT DOCUMENTATION EMPLOYEES ARE REQUIRED TO PROVIDE in order to be able to use either the new Paid Sick Leave or Expanded FMLA Leave benefits.

      Specifically,
      • (a) An Employee is required to provide the Employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA or Expanded FMLA Leave under the EFMLEA: 
        • (1) Employee’s name; 
        • (2) Date(s) for which leave is requested; 
        • (3) Qualifying reason for the leave; and 
        • (4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.
      • (b) To take Paid Sick Leave relating to a Quarantine or Isolation Order or a health care provider’s self-quarantine advice, an Employee must additionally provide the Employer with the name of the government entity who issued the Order or the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19.
      • (c) To take Paid Sick Leave or Expanded FMLA Leave to care for a child whose school or childcare provider has closed or otherwise become unavailable, an Employee must additionally provide:
        • (1) the name of the Son or Daughter being cared for; 
        • (2) the name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and 
        • (3) a representation that no other suitable person will be caring for the child during the period for which the Employee takes Paid Sick Leave or Expanded FMLA Leave.

      Employers may also request such additional material as needed 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. For more information, please consult the IRS guidance (click to open).  

      Employers are required to keep all documentation provided as described above for four years, “
      regardless whether leave was granted or denied.”

      If an Employee provided oral statements to support his or her request for Paid Sick Leave or Expanded FMLA Leave, the Employer is required to document and maintain such information in its records for four years.

      In order to claim tax credits from the Internal Revenue Service (IRS), an Employer is advised to maintain the following records for four years:

      1. Documentation to show how the Employer determined the amount of paid sick leave and expanded family and medical leave paid to Employees that are eligible for the credit, including records of work, telework and Paid Sick Leave and Expanded FMLA;
      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 consult the IRS FAQs - COVID-19 Related Tax Credits for Required Paid Leave Provided by Small and Mid-Sized Businesses

    We Can Help

    We will continue to keep you updated regarding other evolving issues such as the IRS regulations regarding the tax credits which correspond to these new paid leave provisions and other key provisions of the FFCRA through Miller & Martin's Coronavirus Resources Center.

    For advice concerning your particular situation or the applicability of any of our general COVID-19 or FFCRA alert materials to your company, please feel free to contact any member of our Labor & Employment Law Practice Group.