ARE YOU UPSIDE DOWN YET?
And, yes, there’s more! It’s like one of those bad movies that just won’t end, it keeps going and going. Today I bring you the latest and greatest from the United States Department of Labor (DOL). Late Wednesday, the DOL issued its regulations (Regs) addressing a host of clarifications to the Families First Coronavirus Response Act (Act). Can you handle more? I’m not sure I can. The Regs are 124 pages of not so light reading in case you are interested. There’s so much from the DOL Regs that I can’t possibly answer every single question you may have. We will push through the items I haven’t previously written about. Other options you have for answers would be:
- The other 5 blog articles we have here about COVID-19 emergency paid leave.
- At the bottom of this article are links to other COVID-19 resources for business owners.
- Check out Wednesday’s blog article for a compliance to-do list which also explains what documentation you should be requiring from employees.
- Or we’ve got 3 recorded webinars you could watch:
- Webinar recorded on Tuesday, March 24, 2020.
- Webinar recorded on Friday, March 27, 2020.
- Webinar recorded on Wednesday, April 1, 2020.
We’ve tried to make it easy and affordable for you to be compliant with Model COVID-19 Policy Forms you can order from us HERE.
Before we get started on this next round of clarifications, take a deep breath. Remember as a business owner, you DO NOT have to figure this all out on your own. Call your trusted advisors: accountant, CPA, payroll company, banker, business and employment attorney. We want you to succeed and not end up in a crazy legal mess because of a mistake. Each business is different which means your compliance obligations need to be addressed specifically to your operations. Remember that proper DOCUMENTATION is one of the key components to establish you have alerted your employees of their rights and that you properly responded to their leave request. Your compliance obligations are BIG so let us help you figure this out.
Okay, grab your bowl of popcorn and happy reading!
Is an employee entitled to leave where an employer does not have work for an employee or where the employer is shut down?
No. An employee does not qualify for leave if the employer does not have work or telework for the employee. It does not matter if the employer is shut down due to a government order, lacks work due to COVID-19, or for any other reason.
What does it mean to be able to telework (not eligible for leave)?
An employee is able to telework if all three conditions are met:
- the employer has work for the employee;
- the employer permits the employee to work remotely from the employee’s location; and
- there are no extenuating circumstances (such as COVID-19 symptoms) that prevent the employee from performing the work.
DOL clarifies the reasons why an employee qualifies for paid leave.
Reason #1 – Subject to a Quarantine or Isolation Order
This includes a broad range of orders such as an order to shelter in place or stay at home. However, the employee only qualifies for leave if the employer has work or telework available. So, if the employer is shut down before or after such an order is in place then the employee would not qualify for paid leave.
Reason #2 – Advised by a Health Care Provider to Self-Quarantine
When a health care provider advises an employee to self-quarantine on a belief of one of the following:
- the employee has COVID-19;
- the employee may have COVID-19; or
- the employee is particularly vulnerable to COVID-19;
And the employee is unable to work or telework. So, if an employee has an underlying medical condition that makes him or her “particularly vulnerable” to COVID-19 in the workplace, the employee may qualify for paid leave even if the employee does not have the virus itself.
Reason #3 – Experiencing Symptoms and Seeking Medical Diagnosis for COVID-19
An employee who is experiencing the symptoms of fever, dry cough, shortness of breath, or any other COVID-19 symptoms identified by the CDC AND who is affirmatively taking steps to obtain a medical diagnosis, may qualify for paid leave. An employee cannot merely claim that he or she has symptoms to qualify, he or she is required to be seeking a medical diagnosis.
Reason #4 – Caring for an Individual Who Has Been Quarantined or Been Advised to Self-Quarantine
An “individual” is defined as an immediate family member, a person who regularly resides in the employee’s home, or a person that, if the tables were turned, would be caring for the employee. The employee must have a personal relationship with the “individual.”
Reason #5 – Caring for a Son or Daughter Because of School Closure
The Act provides an employee may qualify for leave to care for a child whose school or “place of care” is closed, or where the employee’s “child care provider” is unavailable due to COVID-19 related reasons. The Regs define a “place of care” broadly to include daycare facilities, preschools, homes, summer camps, and summer enrichment programs. Further, the “child care provider” is required to be licensed, regulated, or registered. However, a “child care provider” can also include a family member or friend (even a neighbor) as long as that person “regularly care” for the child, with or without compensation.
Reason #6 – Experiencing Any Other Substantially Similar Condition That May Arise As Designated by the Secretary of Health and Human Services
There is still no explanation as to what this reason for leave means so we wait for additional clarity.
Can the employee elect to use, or can the employer require, that an employee use PTO concurrently with the qualified emergency FMLA leave?
An employee could elect to use accrued PTO to supplement the 2/3 pay provided under the emergency FMLA in order to receive full pay during his or her absence. Similarly, the employer could require the employee to use accrued PTO to supplement emergency FMLA.
Can an employee take intermittent leave?
Yes and no, it depends. In an effort to limit the risk of an employee spreading COVID-19 to other employees, DOL limits the use of intermittent leave for those who are working ONSITE to two main conditions:
- The employee and employer agree to the use of intermittent leave; and
- such use is limited to the employee’s need to care for a child whose school or place of care is closed, or where child care is unavailable.
In the case of TELEWORK, intermittent leave is available for employees as long as the employer agrees, no matter the reason. So, if the employee is teleworking, such an employee may qualify for paid leave intermittently for any of the 6 allowed reasons and may do so in less than full-day increments if agreed to by the employer.
How much emergency paid sick leave can an employee take?
Full-Time Employees: A full-time employee can qualify up to 80 paid sick leave hours in two situations:
- An employee is “full” time if the employer normally schedules him or her to work at least 40 hours each workweek; OR
- An employee without a normal weekly schedule will be “full” time if the average number of workweek hours he or she is scheduled to work (including leave hours they take) is at least 40 hours per workweek over the entire period of employment of the 6 month period that end when the employee takes paid sick leave, whichever is shorter.
Part-Time Employees: If an employee is not full-time then he or she is considered “part” time. To determine how many hours of paid sick leave a part-time employee qualifies for depends on whether the employee works a standard schedule or not.
- Standard Schedule: A part-time employee with a normal weekly schedule will receive an amount of emergency paid sick leave that equals the total amount of hours worked in a 2 week period. For example, if an employee works 20 hours each week, that employee would qualify for up to 40 hours of emergency paid sick leave.
- Non-Consistent Schedule: For an employee who does not work a regular weekly schedule, then an employer will use the total hours the employee worked during the 6 months prior to taking the leave, divide that by the number of calendar days in the 6 month period, then multiply the result by 14. For example, if an employee works 520 hours in a 6 month period, that roughly equates to 2.857 hours per calendar day, so, multiplied by 14, the employee receives up to 40 hours of emergency paid sick leave.
How much emergency paid FMLA leave can an employee take?
An employee is allowed to take up to 12 weeks of emergency paid FMLA. This cannot exceed a total of 12 weeks of leave during the applicable 12-month period. So if you are an employer with 50+ employees and you have an employee who already took 4 weeks of “classic” FMLA leave, then such an employee only has 8 weeks of emergency FMLA to use for this year. However, if an employee exhausts all 12 weeks of FMLA leave, the employee still could use any remaining emergency paid sick leave that has not already been taken.
Can an employee take the emergency paid FMLA first and then the emergency paid sick leave?
Yes! For example, an employee is not required to use the emergency sick leave during the first 2 weeks of emergency FMLA which is the unpaid portion.
Is the employee allowed 80 more hours of emergency paid sick leave if he or she changes employers?
No. A person is limited to a total of 80 hours of qualified leave for 2020. An employee who has taken 80 hours and then changes employers is not entitled to additional emergency paid sick leave from the new employer. However, if the employee has only used a portion before changing jobs, then the employee can seek the remaining emergency paid sick leave from a new employer. Before you grant paid leave to a new employee, employers should ask whether the individual has taken any emergency paid leave previously.
How should employer coverage be determined?
The Act applies to employers with 499 or fewer employees. An employer should calculate its total headcount when an employee’s leave is to be taken. An employer should include:
- all full and part-time employees (no independent contractors);
- only employees within the U.S.;
- all employees on leave;
- temporary employees jointly employed by the employer; and
- day laborers supplied by a temporary agency.
Will multiple corporate entities be counted together?
Generally, 2 or more entities are separate employers unless they meet the “integrated employer” test under the standards of the “classic” FMLA (applicable to employers with 50+ employees). If 2 entities are an integrated employer under the “classic” FMLA, then employees of all entities make up the integrated employer count to determine employer coverage for qualified paid leave.
How can a small business apply for an exemption?
An employer with fewer than 49 employees is exempt from providing emergency paid leave for child-care purposes when allowing such leave would jeopardize the viability of the business as a going concern. To use this exemption, an authorized officer of the employer must determine and DOCUMENT that:
- The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are no 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 leave, and these labor or services are needed for the small business to operate at a minimal capacity.
To elect this small business exemption, the employer must document that an authorized officer made this determination. There is no “form” provided by the DOL, but the employer should retain this documentation in their files. Finally, even where a small employer chooses to exempt one or more employees, it still is required to display and distribute the mandatory COVID-19 emergency paid leave notice.
We’ve tried to make it easy and affordable for you to be compliant with Model COVID-19 Policy Forms you can order from us HERE.
Stay hopeful. Take it one day at a time. We are here for you at a socially safe distance, of course! You didn’t start your business to see it fail and Dana Ball has made it easy and affordable to protect your business.
Links to Bookmark of COVID-19 Resources for Business Owners
Check out this recent Press Release: Has Your Business Distributed COVID-19 Policies to Employees Yet?
DOL Families First Coronavirus Response Act-Questions and Answers: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
EEOC What You Should Know About the ADA, the Rehabilitation Act, and COVID-19: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
FFCRA Temporary Rule: https://www.dol.gov/agencies/whd/ffcra
DOL Wage & Hour Question and Answers: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
DOL Coronavirus Resources: https://www.dol.gov/coronavirus
DOL Online Dialogue: https://www.dol.gov/newsroom/releases/whd/whd20200325
DOL Fact Sheet ffcra-employer-paid-leave: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
Utah Division of Workforce Services: https://jobs.utah.gov/covid19/uifaqemployers.pdf
SBA disaster loan application: https://disasterloan.sba.gov/ela/
Employer Guidance from the U.S. Chamber of Commerce: https://www.uschamber.com/sites/default/files/guidance_for_employers_to_plan_and_respond_to_the_coronavirus_031620.pdf