The Department of Labor has now issued regulations to implement the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). In addition, the DOL has provided compliance assistance, including in the form of Questions and Answers. As of the date of this blog (4/7/2020), the Q&A addresses 79 questions.
There is so much information being provided about these new laws that it is difficult for employers to digest all of it and find information most relevant to them. The purpose of this blog is to address some frequently asked questions that I am receiving to try and help employers get answers to their most common questions. I have included citations to the DOL regulations and the DOL Q&A for those who would like to review the source material.
I plan to update this blog regularly, time permitting. If you have questions about the EPSLA and the EFMLEA, please let me know.
Index of Questions
- What is the regular rate of pay? – 29 CFR 826.25
- For Paid Sick Leave Reason #3, what is meant by the phrase “seeking medical diagnosis?” – 29 CFR 826.20(a)(4)
- Can an Employee Take Intermittent Leave? – 29 CFR 826.50
- What documentation does an employee need to provide to take paid sick leave or emergency FMLA leave? – 29 CFR 826.100
- When does the potential exemption for employers with fewer than 50 employees apply? – 29 CFR 826.40(b)
What is the regular rate of pay? – 29 CFR 826.25
The rate of pay for an employee who takes a leave due to the EPSLA or the EFMLEA is based on the employee’s regular rate of pay. To determine the regular rate of pay, you determine the employee’s average regular rate of pay over the six month period prior to the date on which the employee takes leave (or a shorter period if the individual has worked less than six month). Essentially, add up all pay that was made to an employee over the prior six months, including commissions, tips, and piece rates, and divide by the number of hours worked over that same time period. 29 CFR 826.25; FFCRA Q&A #8.
As a simple example, if an employee was paid $400 in one week and worked 40 hours that week, and was paid $200 the following week and worked 10 hours that week, you would divide the $600 total compensation by 50 hours of work, which results in a regular rate of pay of $12 per hour. Commentary to 29 CFR 826.25.
For Paid Sick Leave Reason #3, what is meant by the phrase “seeking medical diagnosis?” – 29 CFR 826.20(a)(4)
Paid Sick Leave Reason #3 provides that an employee who is experiencing symptoms of COVID–19 and is seeking a medical diagnosis and, therefore, is unable to work or telework must be provided with paid sick leave.
“Seeking medical diagnosis” means that an employee “is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.” 29 CFR 826.20(4). So, as long as the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, he/she is eligible for paid sick leave. Note that paid sick leave for this reason is limited to the time the employee is unable to work because the employee is seeking a medical diagnosis.
* An employee who is waiting for the results of a test cannot use paid sick leave if the individual can telework and there are not extenuating circumstances, such as serious COVID-19 symptoms, that may prevent the employee from performing such work. Commentary to 29 CFR 826.20(a)(4).
Can an Employee Take Intermittent Leave? – 29 CFR 826.50
- Whether paid sick leave or paid emergency FMLA leave can be taken intermittently (meaning, in separate periods of time rather than one continuous period) depends on whether an employee needs to report to the worksite or can telework.
(a) Subject to (2) and (3) below, intermittent leave is allowed only if both the employer and the employee agree to intermittent leave. If so, only the time that leave is actually taken may be counted toward the leave requirements. For example, if an employee who normally works 40 hours per week takes three hours of leave each day, that individual has only used 15 hours of qualifying leave. 29 CFR 826.50(a), (d).
(b) An agreement to intermittent leave requires a clear and mutual understanding between an employer and an employee. To avoid misunderstandings, it would be a good idea for an agreement allowing intermittent leave to be memorialized and confirmed in an email or in writing so that both the employer and the employee have a clear understanding of the arrangement (e.g., what days or hours are to be worked/not worked). 29 CFR 826.50(a).
- If the person needs to work at the worksite:
(b) Intermittent leave is not allowed for any of the other reasons for which paid sick leave is available. Paid sick leave for one of those reasons must be used consecutively in full day increments until the employee no longer has a qualifying reason for paid sick leave or has exhausted the paid sick leave. 29 CFR 826.50(b)(2); FFCRA Q&A #21, 22.
- If the person is allowed to telework: Intermittent leave under both the emergency paid sick leave act and the EFMLEA may be taken for any of the reasons for which paid sick leave is available for such periods when the employee is unavailable to telework because of a COVID-19 related reason. 29 CFR 826.50(c); FFCRA Q&A #20.
What documentation does an employee need to provide to take paid sick leave or emergency FMLA leave? – 29 CFR 826.100
An employee is required to provide their employer with documentation containing the following information prior to taking paid sick leave or EFMLA:
(1) The employee’s name,
(2) Date(s) for which leave is requested,
(3) Qualifying reason for the leave, and
(4) An oral or written statement that the employee is unable to work because of the qualified reason for leave. An employer is required to document and maintain such oral requests for four years. 29 CFR 826.140(a). Thus, if an employee provides an oral statement, it may be prudent for an employer to ask the employee to also provide the statement in writing or in an email (although it appears you cannot require such a writing or email) or, at the very least, for the employer to confirm it in an email or writing to the employee.
In addition, an employee also must provide the employer with the following information for paid sick leave:
(1) For sick leave reason 1: The name of the government entity that issued the quarantine or isolation order. 29 CFR 826.100(b).
(2) For sick leave reason 2: The name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19. 29 CFR 826.100(c).
(3) For sick leave reason 3: This was not directly addressed in the rule. For now, employers should get a written statement from the employee that he/she is experiencing COVID-19 symptoms and is in the process of seeking a medical diagnosis.
(4) For sick leave reason 4: (1) The name of the government entity that issued the quarantine or isolation order to which the individual being care for is subject; or (2) The name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19. 29 CFR 826.100(d).
(5) For sick leave reason 5 or EFMLEA: (1) The name of the son or daughter being cared for; (2) The name of the school, place of care, or child care provider that has closed or become unavailable; and (3) A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes paid sick leave or EFMLEA. (Note that The DOL’s Questions & Answers guidance state that an employee does not need to be paid sick leave to care for a child if a co-parent, co-guardian, or the usual child care provider is available to provide the care for the child’s needs. 29 CFR 826.100(e).
(6) For sick leave reason 6 (substantially similar condition): HHS has not yet identified any such substantially similar condition.
An employer also may ask an employee to provide such additional material as may be needed to support a request for tax credits pursuant to the Families First Coronavirus Response Act. Employers are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. That said, employers should be very careful when considering denying somebody a leave on this basis. Discuss with the company’s tax advisor regarding information need to request tax credits. 29 CFR 826.100(f).
Retention of Records: An employer should keep all documentation for four years, regardless of whether leave was granted or denied. 29 CFR 826.140(a).
When does the potential exemption for employers with fewer than 50 employees apply? – 29 CFR 826.40(b)
Employers with fewer than 50 employees may be exempt from the requirement to provide paid emergency FMLA or paid sick leave (for reason 5 only – school/child care closed or unavailable). 29 CFR 826.40(b); FFCRA Q&A #58, 59.
This exemption applies if imposing the paid leave requirements would jeopardize the viability of the business as a going concern. The exemption applies if an authorized officer of the business has determined that:
(1) 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;
(2) The absence of the employee(s) 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
(3) 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(s) 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, an employer must document that a determination has been made pursuant to the criteria above. The employer should not send such documentation to the Department, but rather retain the records in its files. 29 CFR 826.40(b)(2); FFCRA Q&A #4.