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What You Need to Know About Recent DOL Regulations
on Emergency Paid Sick Leave and Emergency Family Sick Leave


Dear Clients and Friends:

We hope this Newsletter finds you well, and that you are finding ways to thrive and survive even in the constant onslaught of new information and changing landscapes.

The U.S. Department of Labor ("DOL") has issued significant clarifications to the Families First Coronavirus Relief Act ("the Act") via a Temporary Rule. We do not want to inundate you with rules we have already summarized, so here is a link to the prior Newsletters for backdrop.

Below we have captured the significant new information from the DOL regulations:

Which Employers Are Covered Under the Act? The Act applies to companies with fewer than 500 employees.

  • A small employer (fewer than 50 employees) is exempt from the requirement to provide Emergency Paid Sick Leave ("EPSL") or Emergency Family and Medical Leave ("EFMLA") when: (1) the leave would cause the employer's expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of their specialized skills, knowledge of the business, or responsibilities; or (3) the small employer cannot find enough other available workers who are able, willing, and qualified to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

    For reasons (1), (2), and (3), the employer may deny EPSL or EFMLA only to those otherwise eligible employees whose absence would cause the small employer's expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.

    A small employer must document the facts and circumstances that meet the criteria to justify such denial. The employer should not send such material or documentation to the DOL, but rather should retain such records for its own files.Independent contractors that provide services for an employer do not count towards the 500-employee threshold, nor do employees count who have been laid off or furloughed and have not subsequently been reemployed. Furthermore, employees must be employed within the United States to count toward the 500.

  • The Act does not distinguish between for-profit and non-profit entities; employers of both types must comply with the Act if they otherwise meet the requirements for coverage.

  • Employers may choose to exclude employees who are health care providers or emergency responders from EFMLA and EPSL. If an employer opts to exclude otherwise-eligible health care providers and emergency responders, it does not impact the employees' ability to take earned or accrued sick, personal, vacation, or other employer-provided leave under company policy. Employers who provide EFMLA and/or EPSL to health care providers and emergency responders are eligible for the tax credit created by the Act.

Which Employees are Eligible for EPSL; Length of Employment. The Emergency Paid Sick Leave Act ("EPSLA") applies to employees of covered employers if they have been employed for at least 30 calendar days. This includes employees who were laid off or otherwise terminated on or after March 1, 2020, had worked for the employer for at least 30 of the prior 60 calendar days, and were subsequently rehired or otherwise reemployed by the same employer.

When Are Employees Eligible for EPSL? As a quick reminder, under the Act employers must provide EPSL to employees who are unable to work for six reasons having to do with COVID-19. Meaningful clarifications have been provided for the first five reasons. The employee:

(1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

(2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

(3) is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

(4) is caring for an individual who is subject to an order as described in (1), or who has been advised as described in (2);

(5) is caring for his or her son or daughter whose school or place of care has been closed or whose child care provider is unavailable due to COVID-19 related reasons; or

(6) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

(1) Are Employees Who Are Unable to Work Due to the Governor's Stay at Home Order Eligible for EPSL? As we outlined in our last Newsletter, an open question was whether Governor Newsom's "stay at home" order satisfied the requirements of the first eligiblity prong.

  • The DOL has confirmed that yes, employees who are required to stay at home and unable to work due to a state government shelter-in-place rule (like Governor Newsom's order) are eligible for EPSL.

  • However, the question is would the employee be able to work or telework "but for" being required to comply with a quarantine or isolation order. An employee subject to one of these orders may not take EPSL where the employer does not have work for the employee, because the employee would be unable to work even if the employee did not need to stay at home. The DOL example is helpful: if a coffee shop closes due to a downturn in business, even if the downturn is due to COVID-19, the employee is not eligible for EPSL because even if the employee is able to leave her home, she doesn't have work available to her.

  • It appears that eligibility reason (1) is available in very limited circumstances: for example, where a business is not essential, where the business remains open and viable, and where the employee is unable to telecommute. Or perhaps, for example, an employee working for an essential business where the employee is prohibited from going to the worksite because the employee just returned from a foreign country.

(2) What Does it Mean to be Advised by Health Care Provider Not to Work?

  • The DOL has clarified that the advice to self-quarantine must be based on the health care provider's belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. And, self-quarantining must prevent the employee from working.

  • An employee who is self-quarantining and is able to telework may not take EPSL for this reason, if (a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is self-quarantining; and (c) there are no extenuating circumstances, such as serious COVID-19 symptoms (fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention ("CDC")), that prevent the employee from performing that work.

(3) To What Leave Is an Employee Experiencing Symptoms of COVID-19 and Seeking a Medical Diagnosis Entitled?

  • Leave taken for this reason is limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis, for example for time spent making, waiting for, or attending an appointment for a test for COVID-19. The employee may not take EPSL to self-quarantine without seeking a medical diagnosis.

  • An employee who is waiting for the results of a test who is able to telework is not eligible for EPSL, if: (a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is waiting; and (c) there are no extenuating circumstances, such as serious COVID-19 symptoms, that may prevent the employee from performing that work.

  • If there is a positive diagnosis, the employee would qualify for EPSL if the health care provider advises the employee then to self-quarantine. In the case of an employee who exhibits COVID-19 symptoms and seeks medical advice but is told that he or she does not meet the criteria for testing and is advised to self- quarantine, he or she is eligible for EPSL provided all the requirements above are met.

(4) Who is Eligible for Leave to "Care for Someone" Who Has Been Quarantined by Government Order or by a Health Care Provider?

  • An employee is eligible for EPSL when, but for a need to care for an individual, the employee would otherwise be able to perform work for his or her employer. An employee caring for an individual may not take EPSL if the employer does not have work for the employee.

  • EPSL may not be taken to care for someone with whom the employee has no personal relationship, but must be to care for an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.

  • Additionally, the individual being cared for must: (a) be subject to a Federal, State, or local quarantine or isolation order as described above; or (b) 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.

(5) When is an Employee Eligible for EPSL to care for his or her son or daughter in the event of school or care facility closure or care provider unavailability?

  • Again, an employee may not take EPSL if the employer does not have work for the employee.

  • Further, under this reason, an employee may take EPSL to care for his or her child only when the employee needs to, and actually is, caring for his or her child. Per the DOL, an employee does not need to take such leave if another suitable individual-such as a co-parent, co-guardian, or the usual child care provider-is available to provide the care the employee's child needs.

  • A "child care provider" means a provider who receives compensation for providing child care services on a regular basis. However the DOL clarified that the 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.

What About Intermittent Leave?

  • In every case, employees who seek to take their EPSL or EFMLA intermittently must have their employer's agreement. Absent agreement, no leave under the Act may be taken intermittently. In the absence of a written agreement, there must be a clear and mutual understanding between the parties that the employee may take intermittent EPSL or intermittent EFMLA, or both. Additionally, where an employer and employee agree that the latter may take EPSL or EFMLA intermittently, they also must agree on the increments of time in which leave may be taken.

  • If an employer directs or allows an employee to telework, the employee may take EPSL or EFMLA intermittently, in any agreed increment of time, while the employee is teleworking, and for any EPSL or EFMLA qualifying reason.

  • For employees who continue to report to an employer's worksite, EPSL or EFMLA only may be taken intermittently in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at the worksite. In other words, intermittent leave in this case may be available to care for a child who has lost school, day care or child care, but is not available when the employee takes EPSL for any other qualifying reasons.

    Once such an employee begins taking EPSL for a qualifying reason other than the loss of school, day care or child care for their child, the employee must continue to take EPSL each day until the employee either uses the full amount of EPSL or no longer has a qualifying reason for taking EPSL. The DOL believes that such a requirement furthers Congress' objective to slow the spread of COVID-19.

If Exempt Employees Are Granted Intermittent Leave Under the Act, do They Remain Exempt? Yes.

How do Employers Compensate for Hours Worked as "Telework"?

  • Employees who are teleworking for COVID-19 related reasons must record-and be compensated for-all hours actually worked, including overtime, in accordance with the requirements of the FLSA.

  • An employer is not required to compensate employees for unreported hours worked while teleworking for COVID-19 related reasons, unless the employer knew or should have known about such telework.

  • Additionally, to encourage employers and employees to work together to create flexible telework arrangements that allow employees to perform work, potentially at unconventional times, while tending to family and other responsibilities, per the DOL an employer is not required to count as hours worked all time between the first and last principal activity performed by an employee teleworking. This allows an employee, for example, to help teach children whose school is closed or assist the employee's parents who are temporarily living with the family, reserving work times when there are fewer distractions.

What About EPSL for Employees Subject to Quarantine or Home with Their Kids who are Able to Telework?
If an employee is able to telework, the employee may not take EPSL, so long as (a) the employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is being quarantined or isolated; and (c) there are no extenuating circumstances that prevent the employee from performing that work (for example, if someone can work even without access to a Company computer, they aren't eligible for EPSL. But if they can't work due to a power outage or similar circumstance, they might be eligible for EPSL for EPSL during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.)

How do Employers Calculate EPSL for Part-Time Employees Whose Weekly Schedule Varies? A full-time employee is defined as an employee who works at least 80 hours over two workweeks, or at least 40 hours each workweek. An employee who does not have a normal weekly schedule may also be a full-time employee if he or she is scheduled to work, on average, at least 40 hours each workweek. Part-time employees whose weekly schedule varies are entitled to an amount of EPSL equal to 14 times the "number of hours that the employee was scheduled per [calendar] day," averaged over the relevant six-month period. An employer may also use twice the number of hours that an employee was scheduled to work per workweek, averaged over the six-month period.

The Interplay of EFMLA and Other Paid Benefits. Despite the cap on pay, an employee may elect to use, or an employer may require that an employee take leave under the employer's policies that would be available to the employee to care for a child, such as vacation or personal leave or paid time off, concurrently with EFMLA, and the employer must pay the employee a full day's pay for that day. Because a period of EFMLA is paid, neither the employee nor the employer may require the substitution of paid leave. However, employers and employees may agree, where federal or state law permits, to have accrued paid leave supplement the two-thirds pay under EPSL or EFMLA so that the employee receives the full amount of normal pay.

The Interplay of FMLA and EFMLA. Where an employee has already taken some Family and Medical Leave Act ("FMLA") governed leave in the current twelve-month leave year, as defined by FMLA, the maximum twelve weeks of EFMLEA leave is reduced by the amount of the FMLA leave entitlement taken in that year. If an employee has exhausted his or her twelve workweeks of FMLA or EFMLA leave, he or she may still take EPSL for a COVID-19-qualifying reason.

How to Respond to a Request for EFMLA? EFMLA regulations do not require employers to respond to employees who request or use EFMLA leave with notices of eligibility, rights and responsibilities, or written designations that leave use counts against employees' FMLA leave allowances.

How to Hold an Employee Accountable for Leave Notice Requirements? If an employee fails to give notice under the employer's usual notice procedures and requirements, the employer should give the employee notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.

An employee must provide the employer with documentation in support of EPSL or EFMLA, which must include a signed statement containing the following information: (1) the employee's name; (2) the date(s) for which leave is requested; (3) the COVID-19-qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19-qualifying reason.

An Employee Must Provide Additional Documentation Depending on the COVID-19-Qualifying Reason:

  • An employee requesting EPSL due to a federal, state or local quarantine order must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.

  • An employee requesting EPSL due to a health care provider ordered quarantine must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.

  • An employee requesting EPSL to care for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject, or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request.

  • An employee requesting to take EPSL or EFMLA to care for his or her child must provide the following information: (1) the name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

For leave taken under the FMLA for an employee's own serious health condition related to COVID-19, or to care for the employee's spouse, son, daughter, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply.


Record Retention.

  • An employer is required to retain all documentation provided pursuant to the Act for four years, regardless of whether leave was granted or denied.

  • If an employee provided oral statements to support his or her request for EPSL or EFMLA, the employer is required to document and retain such information for four years.

  • If an employer denies an employee's request for leave pursuant to the small business exemption, the employer must document its authorized officer's determination that the prerequisite criteria for that exemption are satisfied, and retain such documentation for four years.

Can Employers Offset Their Prior Generosity? No. Employees are entitled to the entirety of the EPSL and EFMLA if they are eligible, regardless of whether an employee took a additional paid leave the employer generously and voluntarily offered. However, an employer may prospectively terminate such a voluntary additional paid leave offering as of April 1, 2020, or thereafter, provided that the employer had not already amended its leave policy to reflect the voluntary offering.

Is EPSL or EFMLA Retroactive? No. Employees do not have any right or entitlement to use EPSL or EFMLA retroactively, meaning they have no right or entitlement to be paid through EPSL or EFMLA for any unpaid or partially paid leave taken before April 1, 2020.


COVID-19 Emergency Business Protection Program

As we previously shared with you, in response to COVID-19 and the concerns we know you have about complying with the law, protecting your employees and avoiding litigation, we have developed an Emergency Business Protection Program (EBPP) designed to help you make difficult decisions while protecting yourself from litigation.

Your EBPP includes: For a period of one month from the date you join the EBPP, you will receive:

  • Your Emergency Bundle, which includes key documents you need (customized for your unique workplace) to respond to the COVID-19 crisis, so that you are legally protected and have what you need to make the best decisions, including:

    • If you are an Essential Critical Infrastructure business, communication supporting that status;

    • Policies on procedure for maintaining a safe workplace and responding to a notice of a COVID-19 diagnosis;

    • An Emergency Leave Policy, so you and your employees have shared expectations;

    • A Request for EPSL and EFMLA Form for employees requesting leave, and letters granting or denying the leave;

    • A summary of the potential restructuring options you have and the consequences of those options;

    • Temporary remote work policies and agreements;

    • Notices to employees in the event of reduction in hours, modification of exempt status, furlough or termination;

    • Separation agreements;

    • DOL required postings, and related helpful documents.

  • A one hour "COVID-19 Emergency Jump-Start Counseling Call" to tailor your documents and discuss your unique situation, so that you have peace of mind knowing you have the fundamental pieces and guidance available to protect your work community;

  • Unlimited "Quick COVID-19 email communication" (as long as you aren't emailing us 24-7);

  • Unlimited "Quick Emergency COVID-19 calls." That is, any COVID-19-related question that we can answer in under 10 minutes.

The EBPP Program Fee. This is a flat fee program, $2,750.

If you are interested in joining the EBPP, we will need to hear from you as soon as possible, so please let us know if you want to join.

We Are Here For You

We hope this information is helpful. Please stay tuned, we will continue keeping you updated. Please stay in touch. You are in our thoughts constantly. And please, reach out if you have questions or just want to talk!

As always, we are sending you wishes of health, gratitude and well-being.