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NEW TEMPORARY RULES CLARIFY FFCRA’s ACTS: EMERGENCY FMLA and EMERGENCY SICK PAY LEAVE

On April 1, the Department of Labor issued a Temporary Rule with regulations addressing specific parts of the new FFCRA. Read our March 19 article, “What does the Families First Coronavirus Response Act Mean for Your Business?” for the basics of the FFCRA. The new Temporary Rule helps employers understand their obligations and their employees’ rights under both the EFMLA and EPSLA provisions of the FFCRA. 

The clarifications for covered employers include:

Emergency Family Medical Leave Act (EFMLA) applies to businesses with fewer than 500 employees and benefits all employees with 30 days of service or more. 

The new rule has clarified that employers must permit employees to take EFMLA leave if an employee is unable to work (or telework) due to needing to care for a son or daughter, including children 18 or older who are incapable of self-care because of a mental or physical disability, if the child’s school or daycare has been closed, or the childcare provider is unavailable due to COVID-19.

  • Example: If an employee with school age or a disabled child or an infant in daycare cannot report to work because the employee has no one to watch the kids and working from home is not an option, the employee may take leave under EFMLA.

FMLA-covered employers must also continue to comply with traditional FMLA. Employees who meet the traditional 12-month employment requirement may still be eligible for unpaid leave to care for themselves or a family member with a serious health condition (and/or related to COVID-19).

  • Example: Nursing care facilities are prohibiting family members from visiting residents during COVID-19. An employee who brings their elderly parent (or parent-in-law) home from a nursing care facility for personal home care may take FMLA leave if the employer and employee otherwise meet the standard FMLA coverage and eligibility requirements.

Under EFMLA, employers must permit employees to take up to 12 weeks of leave over a 12-month period. This means:

  • Employees’ available EFMLA time is reduced by any FMLA time already taken during the employer’s plan year
  • FMLA time for the remainder of the plan year may be reduced by any EFMLA time taken
  • If an employee has exhausted his/her 12 weeks of FMLA/EFMLA leave, the employee may still take leave and receive pay under the EPSLA, if qualified
  • Employees may be required to use accrued leave under the employer’s policies that provide for child care leave, e.g., vacation, personal leave, or PTO concurrently with EFMLA leave

Employers may require that some form of paid leave be substituted under the EFMLA’s unpaid initial 10-day period.  Eligible employees may elect to use EPSL during the initial unpaid 10 day period.

Under the Emergency Paid Sick Leave Act (EPSLA), covered employers must pay Emergency Paid Sick Leave (EPSL), regardless of tenure, to Full-time, Part-time, Seasonal, and Temporary employees when, in relation to COVID-19:

  • Employee is under quarantine or isolation ordered by Federal, State, or local law – only if the employee is able to work or telework “but for” being required to comply with a quarantine/ isolation order
    • An employee is ineligible for EPSL where the employer has no work for the employee. EXAMPLE: If a restaurant closes temporarily or indefinitely due to lack of business related to COVID-19, it would no longer have work for its employees, and they would be ineligible for EPSL.
    • An employee is ineligible for EPSL if able to telework and (a) the employer has work for the employee to perform; (b) the employer permits the employee to perform that work from home; and (c) no extenuating circumstances exist that prevent the employee from working (e.g., a power outage). EXAMPLE: An Administrative Assistant who is permitted to work from home on his own computer is not prevented from working by a stay-at-home order and is, therefore, ineligible for EPSL.
  • Employee is advised by a healthcare provider to self-quarantine which directly prevents the employee from working
  • Employee needs to obtain a medical diagnosis or receive care; leave is limited to the time taken to obtain a medical diagnosis and while awaiting test results
  • Employee must care for or assist someone who is under a self-quarantine order
    • The relationship must be one that creates an expectation of care
    • The cared for individual must be subject to an official order or advised by a health care provider to self-quarantine based on COVID-19 concerns
  • Employee must care for a son/daughter if the school or place of care is closed or unavailable – under both the EPSLA and the EFMLA, the employee is ineligible if the employer has no work for the employee; the employee must actually be caring for the child

* Employees who are able to work or telework under any of the above conditions would be ineligible for EPSL

Other clarifications provided by the Temporary Rule include:

  • EPSL is not carried over from one year to the next (presumably ending 12/31/2020, the end of the covered period), nor is it paid out to employees at termination of employment
  • Employers whose businesses had already closed or closes after 4/1/2020, are not required to comply with the EPSLA or the EFMLA, although employers should not close just to avoid EMFLA or EPSLA requirements
  • Employers may not require an employee to use other paid leave provided by the employer before the employee uses the EPSL
  • Employers may allow intermittent EFMLA and EPSL where the reason is school/childcare closure, but all other reasons for EPSL require employees to take leaves in blocks of time
  • Employers may not require the employee to identify a replacement employee in order to take paid sick leave
  • Employers may request reasonable notice for the continued need for EPSL following the first workday for which an employee requests EPSL

As further clarifications are provided, we’ll be updating our blog to bring you the latest on these critical employer related COVID-19 issues.