Read This--It Is Important!
Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.
Those you who are getting and, hopefully, reading my updates know that for the past couple of weeks I have been trying to keep you up-to-speed on everything that the federal agencies are putting out regarding the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act. You also know that the feds have been putting out a lot. Well, yesterday afternoon the Department of Labor (DOL) did it again when it published its temporary regulations, all 124 pages worth. You can read the regulations here https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-07237.pdf
As you will see, these regulations contain some significant changes to the way that we thought the FFCRA should be interpreted. I have summarized some of the key regulatory points below, but these are only some of the key points. You need to study the entire set of regulations, or rely upon your friendly neighborhood employment lawyer.
What does “subject to a quarantine or isolation order” actually mean?
The regulation provides that:
Subject to a quarantine or isolation order. For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, 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 even though his or her employer has work that the employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or 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.
Sounds a lot like Governor John Bel Edward’s stay-at-home Order of March ____, doesn’t it? Keep in mind that this will not apply if you do not have work for the employee or have otherwise laid off, furloughed or terminated their employment. This will probably also not apply to employees of essential businesses who are expressly allowed to travel to and from work under the Executive Order.
How do you apply “advised by a health care provider to self-quarantine”
Employees can take paid leave under the EPSLA if they have been advised by a health care provider as defined in 29 CFR 825.102, to self-quarantine. This means that —
1. A health care provider advises the employee to self-quarantine based on a belief that:
a. the employee has coronavirus;
b. the employee may have coronavirus; or
c. the employee is particularly vulnerable to coronavirus; and
2. following the advice of a health care provider to self-quarantine prevents the employee from being able to work, either at the employee’s normal workplace or by telework.
What does “caring for an individual” mean?
The EPSLA allows a worker to take paid sick leave to “care for an individual” who is subject to an order to quarantine or isolate. The regulation tells us that “individual” means:
“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. For this purpose, ‘individual’ does not include persons with whom the Employee has no personal relationship.”
Can both parents be “caring for a son or daughter”?
The short answer is, probably not.
The new regulations provide that leave to care for a son or daughter whose school is closed or child care provider is unavailable cannot be taken if another suitable person is available who can care for the son or daughter during the period of leave.
Child Care Provider
The CCFRA indicated that one could only be a “child care provider” if he or she was compensated for the task. This meant that if Memaw could not care for her grandson, let’s call him Jay, because she was instructed by her doctor to stay home due to COVID-19, this would not entitled Jay’s parents to take paid leave under the FFCRA. The regulations make clear that this was not the actual intent of the drafters of the Act. The regulations provide that if the child care provider is a family member, friend, or neighbor who regularly cares for the employee’s child, he or she need not be compensated or licensed. (Yes, I called my maternal grandmother Memaw. Please withhold all Big Bang Theory-Young Sheldon jokes.)
When can employees take intermittent leave?
1. If the employee is working at your office:
a. If you and the employee agree, the employee may take 100% of her EPSLA and EFMLA leave intermittently to care for the Employee’s son or daughter whose school or place of care is closed, or child care provider is unavailable, because of reasons related to COVID-19. In this situation, leave may be taken in any increment of time agreed to by the Employer and Employee.
b. An employee cannot take intermittent leave for any of the other 5 reasons specified in the EPSLA.
c. Once an employee begins taking paid leave for any of the other 5 reasons specified in the EPSLA, she must use the permitted days of leave consecutively until the employee no longer has a qualifying reason to take EPSLA leave.
2. If the employee is teleworking:
a. The employer and employee may agree that the employee may take any leave available under the Act intermittently, and in any agreed increment of time (but only when the employee is unavailable to telework because of a coronavirus related reason).
I can’t require an employee to USE their PTO, can I?
The short answer, maybe.
The regulation provides that “an employee may elect to use, or an employer may require an employee to use, accrued leave that under the employer’s policies would be available to the employee to care for a child, such as vacation or personal leave or paid time off concurrently with the expanded family and medical leave.” This is a 180 degree change.
What notice do employees have to provide?
While verbal notice of need for leave is initially sufficient, the regulations make clear, as do recent IRS guidance-refer to my update of 4-2, states that employees must still provide certain documentation containing the following information to their employer prior to taking leave under Act:
- Employee’s name;
- Date(s) for which leave is requested;
- Qualifying reason for the leave; and
- Oral or written statement that the employee is unable to work because of the qualified reason for leave.
For paid sick leave relating to a government quarantine or isolation order, the employee must also provide the name of the government entity that issued the order.
For paid sick leave based on the advice of a health care provider to self-quarantine due to concerns related to coronavirus, the employee must also provide the name of the advising health care provider.
For paid sick leave relating to the care of an individual who is subject to governmental or self-quarantine order, the employee must also provide the name of the government entity that issued the order or the name of the advising health care provider.
For paid sick leave relating to the care of the employee’s child because the child’s school or child-care provider is closed, the employee must also provide: (i) the name of the child being cared for; (ii) the name of the school, place of care, or child care provider that has closed or become unavailable; and (iii) a representation that no other suitable person will be caring for the child during the period for which the employee takes leave under the Act.
If you fail to gather and document this information, you will not be able to take advantage of the tax credit provided in the FFCRA.I realize that this is a lot of new and contradictory information. Don’t hesitate to reach out if you need assistance digesting and implementing it all.