April 15, 2020 Update on the Federal Families First Coronavirus Response Act Rules
KEEPING YOU INFORMED…
We are writing to provide you with additional information regarding the implementation of the new federal Families First Coronavirus Response Act (the “FFCRA”), which includes both the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA”) and the Emergency Paid Sick Leave Act (“the EPSLA”), that comes from the U.S. Department of Labor’s (“DOL”) recently-issued temporary rule (“the Rule”), the corrections the DOL issued to the Rule on April 10, 2020 and the latest additions to the DOL’s online “Families First Coronavirus Response Act: Questions and Answers” (“the Q&A”).
Clarifications Regarding Eligibility for EPSLA Leaves
Our March 25, 2020 memorandum (at page “8”) outlines the six reasons an employee may take paid leave pursuant to the EPSLA. The Rule has clarified the scope of several of these reasons. For public employers that are providing full pay without charge to accruals to “non-essential” employees pursuant to Executive Order 202.4 (as extended by subsequent Executive Orders), and private employers that are voluntarily doing the same, these clarifications have no practical effect on an employee’s status.
- Quarantine or Isolation Orders: The Department of Labor has defined the term “quarantine or isolation order” very broadly to include “containment, shelter-in-place or stay-at-home orders issued by any Federal, State or local government authority that cause the Employee to be unable to work” in addition to orders of quarantine and isolation issued by a government entity.
Therefore, unlike the State COVID-19 law, an employee can be eligible for EPSLA leave simply by being subject to a State-wide shelter-in-place or stay-at-home order. The Rule does not define a stay-at-home order and it has not yet been determined whether, for these purposes, Governor Cuomo’s “PAUSE” orders are stay-at-home orders. We, therefore, recommend that you contact us if an employee requests EPSLA leave based on these orders.
A prerequisite for being eligible for EPSLA leave continues to be that the employee must be unable to work either at the employee’s normal workplace or by telework. If the employer does not have work for the employee to perform, the employee is not eligible for EPSLA leave, even if the lack of work is the result of a shelter-in-place or stay-at-home order.
- Advised by a Health Care Provider to Self-Quarantine: Pursuant to the Rule, an employee may be eligible to take leave for this reason if he/she is unable to work or telework and a health care provider advises the employee to self-quarantine based on a belief that:
- The employee has COVID-19;
- The employee may have COVID-19; or
- The employee is particularly vulnerable to COVID-19.
While this is very broad, it does not encompass providing EPSLA leave to employees who are afraid to come to work because they may get COVID-19 or may be exposed to COVID-19 and bring it home to their families. The Rule does not define the term “self-quarantine.” We interpret the Rule as requiring more than the employee being advised not to come to work.
- Seeking a Medical Diagnosis: The Rule states that leave is limited to the time that the employee is unable to work or telework because he/she “is taking affirmative steps to obtain a medical diagnosis” such as “making, waiting for, or attending an appointment for a test for COVID-19.”
- Caring for an Individual: The “individual” who is being cared for must be subject to a quarantine/isolation order (as defined above) or have been advised by a health care provider to self-quarantine because of a belief that the individual (i) has COVID-19; (ii) may have COVID-19 due to known exposure or symptoms; or (iii) is particularly vulnerable to COVID-19. The Rule defines “an individual” to mean the 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 [e]mployee would care for the person if he or she were quarantined or self-quarantined.” An employee is not entitled to leave for this reason if the employer does not have work for the employee to perform.
Clarifications Regarding Childcare Leaves
An employee may take EPSLA and/or Emergency FMLA leave to care for his/her child if the school or place of care for the employee’s child is closed, or his/her child care provider is unavailable, due to COVID-19-related reasons and the employee is unable to work or telework as a result. The Q&A now clarifies that a school is considered “closed” for purposes of the EPSLA and Emergency FMLA even if online instruction is being provided.
Leave may not be taken for this reason unless there is work for the employee to perform and, but for a need to care for the child, the employee would be able to perform it (either on-site or by telework). Moreover, the employee is eligible for this leave only if “no other suitable person is available to care” for the child during the period of the leave. Generally, this means that only one parent or guardian at a time will be eligible to take EPSLA or Emergency FMLA leave to care for a child.
Finally, notwithstanding the language of the statute, the Rule explains that an employee is eligible to take EPSLA and/or Emergency FMLA leave to care for an adult child (i.e., one who is 18 years or older) who has a mental or physical disability and is incapable of self-care because of it.
With the exception of childcare leaves, employers may not require that employees provide notice of the need for leave for an EPSLA qualifying reason until after the first workday or portion of a workday that the employee takes the leave. After the first workday/portion of a workday, employers may require that employees follow “reasonable” notice procedures. While the Rule does not specify precisely what would, or would not, be a reasonable procedure, it does say that, generally, it would be reasonable for an employer to require that employees: (1) follow the employer’s “usual and customary notice and procedural requirements for requesting leave[;]” (2) provide “oral notice and sufficient information to determine whether the requested leave is covered” by the ESPLA; and (3) give notice “as soon as practicable under the facts and circumstances after the first workday or portion of a workday” for which an employee receives an EPSLA or Emergency FMLA leave. Likewise, the Rule provides that generally it will be reasonable for notice to be given by the employee’s spouse, family member or other responsible party if the employee is unable to do so personally.
For EPSLA and Emergency FMLA childcare leaves, where the need for leave is foreseeable, the employee must provide the employer with notice “as soon as practicable.”
In order to be eligible for an EPSLA or Emergency FMLA leave, employees are required to provide “documentation containing the following information” to their employer: (i) their name; (ii) the dates(s) for which leave is requested; (iii) the qualifying reason for the leave; and (iv) an “oral or written statement that the employee is unable to work” because of the qualifying reason for leave. Depending on the type of leave requested, the employee must provide additional information as follows:
- Employees subject to a quarantine or isolation order: the name of the government entity that issued the order.
- Employees advised to self-quarantine: the name of the healthcare provider that advised them to self-quarantine.
- Employees caring for an individual:
- The name of the government entity that issued the quarantine or isolation order to that individual; or
- The name of the health care provider who advised that individual to self-quarantine due to COVID-19-related concerns.
- Employees caring for their child must provide:
- The name of the child(ren);
- The name of the school, place of care or child care provider that has closed or become unavailable; and
- A representation that no other “suitable” person will be caring for the child during the employee’s leave period.
Employers entitled to tax credits pursuant to the FFCRA may also require from their employees any additional documentation required by the IRS. An IRS FAQ requires that a “statement of the COVID-19 related reason the employee is requesting leave and written support for such reason” must be provided by the employee. In addition to the information above, the FAQ requires the employee to provide:
- Where the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee;
- Where leave is requested based on a school closing or child care provider’s unavailability:
- The age of the child(ren) to be cared for;
- A representation that no other person will be providing care for the child(ren) during the period for which the employee is requesting leave; and
- If the child is older than 14 and leave is being taken during daylight hours, a statement that special circumstances exist requiring the employee to provide care.
Employers who believe that additional information is required to confirm that the employee is eligible for leave should contact us for further guidance.
Employers are required to retain all documentation provided by the employee pursuant to the “Documentation” section of this memorandum, pages “4” to “5” above, for four years, regardless of whether leave was granted or denied. If an employee provided oral statements to support his/her request for leave, the employer is required to document and maintain this information. The Rule does not specify how the oral statements must be documented.
Where the exception for private employers with fewer than 50 employees is invoked, the employer must document that it is eligible for the exception and retain that documentation for four years.
Current Leaves of Absence
The Q&A states that if an employee is currently on a voluntary leave of absence, he/she may end that leave and begin taking paid leave pursuant to the EPSLA or Emergency FMLA if a qualifying reason prevents the employee from being able to work or telework. The employee may not, however, take paid leave pursuant to the EPSLA or Emergency FMLA if the employee’s leave of absence is mandatory. If you receive this kind of request, we recommend that you contact us about documenting and implementing the change in leave status.
The Interaction Between the EPSLA and Emergency FMLA
The Emergency FMLA statute says that the “first 10 days” of Emergency FMLA leave are “unpaid” (though employees are often eligible for paid EPSLA leave during this time). The Rule, however, has modified this so that the “first two weeks” of Emergency FMLA leave are “unpaid.” This was done so that the “unpaid” portion of the Emergency FMLA leave aligns to the length of the paid EPSLA leave. For employees who work Monday through Friday, this language change makes no difference. For others, the employer should make sure that the “unpaid” portion of the Emergency FMLA leave is two weeks.
Employees Who Are Rehired
The Emergency FMLA applies only to those employees who have been employed for at least 30 calendar days. The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which was signed into law on March 27, 2020, amended the Emergency FMLA to expand eligibility for this leave. Employees who were laid off/terminated on or after March 1, 2020, and rehired by the same employer prior to December 31, 2020, no longer have to wait another 30 days before being eligible for an Emergency FMLA leave if they were on the employer’s payroll for at least 30 of the 60 calendar days prior to being laid off/terminated.
Please contact Adam S. Ross, Alyssa L. Zuckerman or one of our other attorneys by calling (631) 694-2300 if you have any questions regarding the contents of this memorandum or other issues that may arise as a result of this new legislation.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2020
 Our initial guidance is contained in our March 25 and April 3, 2020 memoranda (which are both attached for your convenience).
 Taking leave pursuant to the EPSLA or the Emergency FMLA will not affect an employee’s status as “exempt” pursuant to the FLSA.
 The Rule provides that an employer is not required to compensate employees for unreported hours worked while teleworking for COVID-19-related reasons, unless the employer knew, or should have known, about those unreported hours worked. Also, previously existing federal regulations generally provide that all time between an employee’s first and last “principal activities” is compensable work time. The Rule creates an exception to these previously existing regulations for employees who are teleworking. However, because there are potential State law issues, employers should contact us for further guidance before changing their practices.
 An employee does not have to be furloughed or laid off for the employer to not have work for the employee to perform.
 Once the employee receives the results, the employee would be eligible for EPSLA leave only if advised by a health care provider to self-quarantine for a qualifying reason.
 Notably, based on the current wording of the revised Rule, the phrase “due to known exposure or symptoms” does not apply when a health care provider advises the employee himself/herself to self-quarantine because he/she may have COVID-19.
 The Rule allows an employer to require that an employee use existing leave entitlements concurrently with Emergency FMLA leave during weeks three through 12. In most cases, the employee will be using EPSLA leave during the first two weeks and the employer will not be permitted to require the employee to use existing leave entitlements concurrently with the EPSLA leave. We recommend that you contact us for guidance with respect to how to treat/charge an employee’s leave time if the employee is not using EPSLA leave during the first two weeks (because he/she has already exhausted same) and does not want to use his/her accrued leave to be paid..
 Requests for this type of leave should be analyzed on a case-by-case basis. There may be extenuating circumstances that require the employee to take this kind of leave even if there is another parent/guardian in the home. For example, the other parent/guardian could be a first-responder who is on standby for his/her employer and would, therefore, not be consistently available to provide care for the child.
 Additional records that must be maintained if the employer is claiming tax credits from the IRS include: (1) documentation to show how the employer determined the amount of leave paid to employees, including records of work, telework and EPSLA and Emergency FMLA 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.
 This is because it is the mandatory leave of absence, and not a qualifying reason for leave, that prevents the employee from being able to work or telework.