Additional Guidance on COVID-19 Emergency Leave – DOL Issues Temporary Rule (Coronavirus and the Law)

On April 1, 2020, the Wage and Hour Division of the Department of Labor issued a temporary rule that provided some much-needed guidance for Americans wading through the twists and turns of the Families First Coronavirus Response Act and its COVID-19 leave rules under the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSL).

See Families First Coronavirus Response Act (Coronavirus and the Law: Legislative Alert #1) for detailed explanations of these new leave regulations.

Below are the six reasons an employee can use Emergency Paid Sick Leave. Reason 5 also applies to Emergency Family Medical Leave.

Questions about Reason 1
(Government Orders)

What is an “order” under Reason 1?

Quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.

Can my employees still telework if they take EPSL under Reason 1?

An employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking as described therein. The question is whether the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order.

The DOL gave an example: If a law firm permits its lawyers to work from home, a lawyer would not be prevented from working by a stay-at-home order, and thus may not take paid sick leave as a result of being subject to that order.

In this circumstance, the lawyer is able to telework even if she is required to use her own computer instead of her employer’s computer. However, she would not be able to telework in the event of a power outage or similar extenuating circumstance. She would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.

Questions about Reason 2
(Healthcare Provider Orders Self-Quarantine out of Concern)

Can an employee stay away from work because they are scared of becoming infected?

A person doesn’t have to be infected to take leave under EPSL Reason 2, but they cannot self-diagnose their own concerns related to COVID-19. The advice to self-quarantine must be based on a health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.

Furthermore, self-quarantining must prevent the employee from working (or teleworking).

What about teleworking under EPSL Reason 2?

Self-quarantining must prevent the employee from working onsite at the company’s location. An employee who is self-quarantining is able to telework and therefore may not take paid sick leave for this reason if:

1. his or her employer has work for the employee to perform;
2. the employer permits the employee to perform that work from the location where the employee is self-quarantining; and
3. there are no extenuating circumstances, such as serious COVID-19 symptoms, that prevent the employee from performing that work.

If the lawyer in the above example is able to work while self-quarantining at home, she may not take paid sick leave due to a need to self-quarantine.

Questions about Reason 3
(Experiencing Symptoms)

How does Reason 3 work?

First, symptoms means fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention (CDC).

EPSL under Reason 3 is limited to the time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis. Therefore, time spent making, waiting for, or attending an appointment for a test for COVID-19 is covered as long as they are seeking a medical diagnosis.

What about telework under Reason 3?

An employee who is waiting for the results of a test is able to telework, and therefore may not take paid sick leave, if:

1. the employer has work for the employee to perform;
2. The employer permits the employee to perform that work from the location where the employee is waiting; and
3. There are no extenuating circumstances, such as serious COVID-19 symptoms, that may prevent the employee from performing that work.

What if my employee can’t get a COVID-19 test?

DOL has yet to clarify this point, but it appears the employee can still take leave under Reason 2 provided a health care provider has advised them to self-quarantine.

Questions about Reason 4
(Caretaking)

Can my employee take leave to care for, literally, anyone under EPSL Reason 4?

No, but it is much broader than Reason 5, which allows leave for caring for one’s own child only. Rather, the individual being cared for must be an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation the employee would care for the person who is self-quarantined or was quarantined. Leave under EPSL Reason 4 may not be taken to care for someone with whom the employee has no personal relationship.

In addition, the individual being cared for must:

1. Be subject to a federal, state, or local quarantine or isolation order as described in Reason 1; or
2. Have been advised by a health care provider to self-quarantine based on a belief that he or she has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19 as described in Reason 2.

Other Questions about EPSL and EFMLA

What documentation does my employee have to provide to take leave?

Employers are not required to provide leave if the employee does not provide materials sufficient to support the applicable tax credit. An employee is required to provide documentation containing the following information prior to taking Paid Sick Leave under the EPSLA or the EFMLA:

• Employee’s name.
• Date(s) for which leave is requested.
• Qualifying reason for the leave.
• Oral or written statement that the employee is unable to work because of the qualified reason for leave.
• To take EPSL under Reason 1, the name of the government entity that issued the quarantine or isolation order.
• To take EPSL under Reason 2, the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19.
• To take EPSL under Reason 4, the name of either the government entity that issued the quarantine or isolation order or the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19.
• To take EPSL or EFMLA under Reason 5:
  • the name of the son or daughter being cared for;
  • the name of the school, place of care, or child care provider that has closed or become unavailable;
  • a representation that no other suitable person will be caring for the son or daughter during the period for which the Employee takes EPSL or EFMLA; and
  • a statement that extenuating circumstances exist requiring the employee to provide child care for a child over the age of 14 years old.
• Such additional material as needed to support the employer’s request for tax credits pursuant to the FFCRA.

Woods Rogers Labor & Employment team has created specific forms for an employer’s use, please reach out for assistance when deciding to provide emergency leave under the FFCRA.

Can my employee take intermittent leave?

Maybe. One basic condition applies to all employees who seek to take their paid sick leave or expanded family and medical leave intermittently—the employee and their employer must agree.

Absent an agreement, no leave under the FFCRA may be taken intermittently. However, your power to agree is limited. Under no circumstances can an employee who reports to your worksite take paid sick leave under EPSL reasons 1, 2, 3, 4, or 6. If your employee can telework and is seeking leave intermittently due to reasons 1, 2, 3, 4, or 6, you may agree that the employee may take paid sick leave intermittently while teleworking.

What health care providers can be exempted?

The language of EPSL and EFMLA permit employers of health care providers to exercise an exclusion right. For the purposes of determining exemptions under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

The term “health care provider” is further not limited to diagnosing medical professionals, but includes any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency. Such individuals include not only medical professionals but also other workers who are needed to keep hospitals and similar health care facilities well supplied and operational. For example, they include workers involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat the COVID-19 public health emergency.

The DOL broadened FMLA’s definition for the limited purpose of FFCRA, but the normal definition (see 29 C.F.R. § 825.102) continues to apply for other purposes of the FFCRA, such as identifying health care providers who may advise an employee to self-quarantine for COVID-19 related reasons under EPSL Reason 2.

Remember you have a grace period to get your FFCRA bearings.

The DOL will not bring enforcement actions against any employer for FFCRA violations occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, if the employer has made reasonable and good faith efforts to comply.

Here’s what you should to do to take advantage of the grace period:

• Remedy any violations, including making all affected employees whole as soon as possible.
• Review any potential violations for willfulness. In other words, you can’t have known or shown reckless disregard for the matter.
• Issue a written commitment to the DOL to comply with the Act in the future.

This is complicated legislation with many factors. If we can help you navigate your business through the pandemic, every attorney in the Labor & Employment team is ready to assist.

Read more legal updates on COVID-19 from Woods Rogers attorneys.