Legal Bulletins

In less than two weeks, Congress passed two new federal leave laws: the Emergency Family and Medical Leave Expansion Act (e-FMLA) and the Emergency Paid Sick Leave Act (EPSL Act). Since then, the U.S. Department of Labor (DOL) has been issuing guidance to help employers understand the new leave requirements. In addition to the original 14 FAQs issued March 24, 2020 (which were reissued with only minor clarifying changes), the DOL issued 45 new FAQs.

The following is a summary of some of the significant issues addressed by the DOL.

How Do Closures, Layoffs, Furloughs and Reduced Hours Affect e-FMLA and EPSL Rights?

An employee only has the right to receive paid EPSL and e-FMLA leave to the extent that the employee is unable to work the hours the employee would have worked had the employee not been prevented from doing so by covered reasons related to COVID-19. An employee is not entitled to paid leave for the hours the employee would not have worked because of a layoff, furlough or reduced hours as a result of the employer temporarily closing the worksite or reducing staff or hours. This is true whether the employer closes the worksite for lack of business or was required to close pursuant to federal, state or local directives. (FAQs 23-28)

How Do e-FMLA and EPSL Affect Recordkeeping and Certification?

Employers were directed to consult Internal Revenue Service (IRS) applicable forms, instructions and information for the procedures that must be followed to claim a tax credit for the cost of providing leave under e-FMLA or EPSL, including any needed substantiation to be retained to support the credit.

The DOL states that employers “are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.” In that regard, the DOL clarified that employers may require employees to provide information to the extent permitted under existing FMLA certification rules and may also require additional documentation, such as notice about school and/or child care closure or unavailability that has been posted on a government, school or day care website, or published in a newspaper or an email from an employee or official of the school, place of care or child care provider. 

All existing certification requirements under the FMLA remain in effect if an employee takes leave for one of the existing qualifying reasons under the FMLA. (FAQs 15-16)

When May an Employee Telework?

Employees may telework when permitted to do so by their employer. An employee is “unable to work” if their employer has work available for the employee and one of the COVID-19 qualifying reasons in the Families First Coronavirus Response Act (FFCRA) prevents the employee from performing that work either under normal circumstances at the normal worksite or by means of telework.

If an employer and employee agree that the employee will work their normal number of hours outside of the normally scheduled time — such as, early in the morning or late at night — then the employee is able to work and leave is not necessary.

To the extent that an employee is able to telework while caring for their child, paid sick leave and expanded family and medical leave is not available. (FAQs 18-19)

Although not covered by these FAQs, employers should also keep in mind that they may need to allow an employee to telework if doing so would be a reasonable accommodation under the Americans with Disabilities Act.

Is EPSL or e-FMLA on an Intermittent Basis Allowed or Required?

The DOL’s answer to permitting intermittent leave depends upon whether the employee is teleworking or working from their usual worksite.

Telework

An employee may take EPSL or e-FMLA leave intermittently while teleworking if the employer allows leave to be used intermittently and the employee is unable to telework their normal schedule of hours because the employee needs to care for the employee’s child whose school and/or child care is closed and/or unavailable, or because of one of the other qualifying reasons in the EPSL Act.

Intermittent leave may be taken in any increment, provided that the employer and employee agree. The DOL states that it encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the DOL will be supportive of such voluntary arrangements that combine telework and intermittent leave.

Work at the Usual Worksite

When an employee is working at the employee’s usual worksite, not teleworking, EPSL may only be taken intermittently to provide care for a child whose school and/or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons, and only if the employer agrees. All EPSL leave taken for other reasons must be taken in full-day increments and may not be taken intermittently when an employee is working at the employee’s usual worksite.

Unless teleworking, once an employee begins taking paid sick leave for one or more qualifying reasons (other than child care), the employee must continue to take paid sick leave each day until the full amount of paid sick leave is used or the employee no longer has a qualifying reason for taking paid sick leave.

If the employee no longer has a qualifying reason for taking paid sick leave before the leave is exhausted, the employee may take any remaining paid sick leave if another qualifying reason occurs before December 31, 2020. (FAQs 20-22)

Employers should document the terms of any intermittent work arrangements.

Is the Employee’s Health Coverage Maintained While on Leave?

As with traditional FMLA, employees are entitled to continued group health coverage during an e-FMLA leave on the same terms as if the employee had continued to work. The employee must continue to make any normal contributions to the cost of their health coverage.

Similarly, employers must continue the health coverage of employees who take EPSL. Under the Health Insurance Portability and Accountability Act (HIPAA), an employer cannot establish a rule for eligibility or set any individual’s premium or contribution rate based on whether an individual is actively at work (including whether an individual is continuously employed), unless absence from work due to any health factor (such as sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work. (FAQ 30)

How is FFCRA Leave Coordinated with Existing Employer Paid Leave Policies?

Paid sick leave under the EPSL Act is in addition to other leave provided under federal, state or local law; an applicable collective bargaining agreement; or the employer’s existing company policy.

An employee may not take both EPSL or e-FMLA leave simultaneously with leave under an existing employer policy, unless their employer agrees to allow the employee to supplement the amount of compensation received from EPSL or e-FMLA, up to the employee’s normal earnings, with preexisting leave. For example, if the employee is receiving two-thirds of his or her normal earnings from EPSL or e-FMLA and the employer permits, the employee may use preexisting employer-provided paid leave to get the additional one-third of the employee’s normal earnings.

EPSL and e-FMLA are an addition to an employee’s preexisting leave entitlements. Employers may, but are not required to, permit an employee to use existing paid leave to supplement the amount the employee receives under the EPSL Act or e-FMLA. An employer, however, may not require the use of existing employer-provided leave.

The DOL also notes that employers are not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or exceeds the limits set forth under EPSL Act and e-FMLA. Further, employers may not claim, and will not receive tax credit, for such supplemental amounts paid from existing paid employer provided sick leave. (FAQs 31-34 and 46)

Who Is a Son or Daughter?

Under the FFCRA, a “son or daughter” is the employee’s own child, which includes the employee’s biological, adopted or foster child; stepchild; a legal ward or a child for whom the employee is standing in loco parentis, meaning someone with day-to-day responsibilities to care for or financially support a child.

In light of Congressional direction to interpret definitions between the two laws consistently, the DOL also clarified that under the FFCRA a son or daughter may — as under existing FMLA regulations — also be an adult son or daughter (i.e., one who is 18 years of age or older) who has a mental or physical disability and is incapable of self-care because of that disability.

What Are Employees' Return to Work Rights?

An employee generally has a right to return to work if they are taking EPSL or e-FMLA leave. In light of Congressional direction to interpret the requirements among the two laws consistently, the DOL clarified that both laws, like traditional FMLA, require employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave.

Employers are prohibited from firing, disciplining or otherwise discriminating against an employee because the employee takes EPSL or e-FMLA leave, files any type of complaint or proceeding relating to these acts, or has or intends to testify in any such proceeding.

However, employees are not protected from employment actions, such as layoffs, that would have affected them regardless of whether the employee took leave. An employer can lay off an employee who has taken EPSL or e-FMLA leave for legitimate business reasons. As under traditional FMLA, the employer must demonstrate that the employee would have been laid off even if the employee had not taken leave.

Additionally, employers with fewer than 25 employees may not have to restore employees to their prior position if certain conditions specified in the e-FMLA law are met. (FAQ 43)

How Does Prior Use of Traditional FMLA Apply?

An eligible employee is entitled to paid sick leave under the EPSL Act regardless of how much leave the employee may have taken under traditional FMLA prior to April 1, 2020.

If the employer is one covered by traditional FMLA, however, an employee’s eligibility for e-FMLA leave depends on how much traditional FMLA leave the employee had already taken during the 12-month period before the employee initiates leave under e-FMLA. If the employee has taken some, but not all, 12 workweeks of traditional FMLA leave during the current 12-month period, the employee may take the remaining portion of leave available. If the employee has already taken all 12 workweeks of traditional leave during this 12-month period, the employee may not take any additional e-FMLA leave. Any e-FMLA leave taken, counts against the employee’s entitlement to 12 workweeks of leave under traditional FMLA. (FAQs 44-45)

What Are Considered Full-time Employment and Part-time Employment?

For purposes of the EPSL Act, a full-time employee is an employee who is normally scheduled to work 40 or more hours per week, and a part-time employee is an employee who is normally scheduled to work fewer than 40 hours per week.

By contrast, the e-FMLA does not distinguish between full-time and part-time employees. Instead, the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive. (FAQs 48-49)

What Is the Small Business Exemption from the EPSL Act and e-FMLA?

Employers with fewer than 50 employees (small business) are exempt from providing EPSL and e-FMLA leave due to school and/or place of care closures or child care provider unavailability, when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

The provision of paid sick leave or expanded family and medical leave would result in the small business’ expenses and financial obligations exceeding available business revenue and cause the small business to cease operating at a minimal capacity;

The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business or responsibilities; or

There are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

The exemption does not apply to leave requested by employees under the EPSL Act for other reasons. (FAQs 58-59)

Other Issues

The new FAQs also address public sector employees (FAQs 52-54), as well as the right of employers to exclude first responders and heath care employees from EPSL and e-FMLA coverage (FAQs 56-57).

If you have any questions, please contact Charles R. Bacharach.

For additional information on the impact of the coronavirus, visit our information hub for a list of up-to-date content.

Charles R. Bacharach
410-576-4169 • cbacharach@gfrlaw.com