U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act

By Patrick M. Watts*

On April 6, 2020, the Secretary of Labor officially published temporary rules through the Federal Register concerning the Emergency Family and Medical Leave Expansion Act and that Emergency Paid Sick Leave Act of the Families First Coronavirus Response Act (“FFCRA”). The FFCRA and these temporary rules are effective from April 1, 2020 through December 31, 2020, after which, they will have no continued effect.

This alert summarizes some of the significant aspects of the temporary regulations. Please consult with your Z&R contact to discuss your particular circumstances.

Paid Leave Entitlements Include Employees Unable to Work Because of Stay at Home Orders.

Under the FFCRA, there are six qualifying reasons for which an employer is required to provide paid sick leave to an employee, all of which relate to COVID-19. One of these qualified reasons includes when an employee is unable to work because they are subject to a Federal, State, or local COVID-19 quarantine or isolation order. The new regulations state that a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the employee to be unable to work even though his or her employer has work that the employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them.

Child Care Provider Includes Family Members Who Are Uncompensated.

Another qualifying reason for which an employer is required to provide paid sick leave and Expanded FMLA leave includes when an employee is unable to work because their son or daughter’s school or place of care has closed or their child care provider is unavailable due to COVID-19 related reasons. While the term “Child Care Provider” was defined under FFCRA as a provider who receives compensation for providing child care services on a regular basis, the new regulations clarify that an eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the employee’s child.

Paid Leave Entitlements Include Employees “Affirmatively” Seeking Medical Diagnosis.

A third qualifying reason for which an employer is required to provide paid sick leave is when the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a healthcare provider. The temporary rules state that experiencing symptoms includes fever, dry cough, shortness of breath, or any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention. Additionally, “seeking medical diagnosis” includes taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.

Intermittent Leave is Permitted If the Employer and Employee Agree.

An employee is permitted to take intermittent leave only if the employer and employee agree. The employer and employee may make the agreement in writing, but a clear and mutual understanding between the parties is sufficient. If agreed upon, intermittent leave may be taken in any increment of time agreed to by the employer and employee.

Employee Notice of Need for Leave.

An employer can require an employee to provide reasonable notice after the first workday (or part of) for which the employee takes paid sick leave for any reason other than caring for a child or dependent whose school or place of childcare is closed. What constitutes “reasonable notice” depends on the facts of the situation. If an employee does not give notice, the employer should notify the employee of the failure and provide an opportunity for required documentation prior to denying the request for leave. For leave requested to care for a son or daughter whose school or place of care or child care provider is closed, the employee shall provide notice as soon as practicable. In either event, it is reasonable for the employer to require the employee to comply with the employer’s usual notice and procedural requirements for requesting leave unless there are extenuating circumstances.

Documentation of Need for Leave.

An employee is required to provide the following documentation to their employer prior to taking paid sick leave under the EPSLA or expanded family and medical leave under the EFMLEA:

1. Employee’s name;
2. Date(s) for which leave is requested;
3. Qualifying reasons for the leave; and
4. Oral or written statement that the employee is unable to work because of the qualified reason for leave.

In addition, to take paid sick leave for a qualifying COVID-19 reason related to a quarantine or isolation order, an employee must provide the employer with the name of the government entity that issued the quarantine or isolation order. To take paid sick leave for a qualifying COVID-19 reason related to a health care provider advising the employee to self-quarantine, the employee must provide the employer with the name of the health care provider.

To take paid sick leave for a qualifying COVID-19 related reason under the EFMLEA, an employee must provide:

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 expanded family and medical leave.

An employer may also request an employee to provide additional material as needed for the employer to support a request for tax credits pursuant to the FFCRA. If these materials have been requested and not provided, the employer is not required to provide leave. For more information on the tax credits, please click here.

Z&R has developed form policies, request forms and other guidance documents related to these new laws and COVID-19 related issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation
• U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
• Loans, Unemployment Assistance, and Other Relief Under the CARES Act

*Patrick M. Watts, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on all employment related matters. If you have questions about the CARES Act or any employment law questions, please contact Patrick at pmw@zrlaw.com or (216) 696-4441.