The U.S. Department of Labor (DOL) issued temporary regulations implementing the Emergency Family and Medical Leave Expansion Act (“FMLA Expansion”) and the Emergency Paid Sick Leave Act (“EPSL”), both of which provide paid leave benefits to certain employees. These regulations are largely consistent with the DOL’s prior guidance on these new benefits (see earlier Dinse Briefs for a summary of the paid leave law requirements, as well as a summary of prior DOL guidance on these requirements), but there are some notable points of which employers should be aware.
- A shelter-in-place or stay-at-home order issued by a Federal, State or local government authority that causes the employee to be unable to work does qualify an employee for paid leave, but only if the employee’s employer has work the employee could otherwise perform. Stated another way, an employee subject to a stay-at-home order may not take EPSL leave where the employer does not have work for the employee either as a result of the same stay-at-home order or for other reasons.
- An employee is eligible for the paid leave benefit of the FMLA Expansion if the employee has been employed by the employer for at least 30 calendar days. The regulations clarify that employees, who are laid off or otherwise terminated on or after March 1, 2020 and who had worked for the employer for at least 30 calendar days of the prior 60 calendar days, are eligible for FMLA Expansion leave, if they are subsequently rehired or otherwise reemployed by the same employer.
- An employee may qualify for EPSL paid leave if they are caring for an “individual” who is subject to an isolation or quarantine order, or has been advised by a health care provider to self-quarantine due to COVID-19 concerns. An “individual” is defined by the regulations as an employee’s immediate family member, a person who regularly resides in the employee’s house, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if s/he were quarantined or self-quarantined. An individual does not include persons with whom the employee has no personal relationship.
- The taking of EPSL or FMLA Expansion leave shall not impact on employee’s status as an exempt employee under the FLSA.
- Advance notice of the need to take EPSL or FMLA Expansion may not be required by the employer, but after the first workday when an employee takes such leave, the employer may require the employee to follow a reasonable notice procedure. An employee’s notice may be oral, but it must contain enough information for an employer to determine that the requested leave is covered by the federal paid leave laws. If the employee fails to provide the proper notice, the employer should inform the employee of the failure and provide the employee with an opportunity to comply with the procedure prior to denying the request for leave.
- The regulations clarify what documentation an employer may ask employees to provide to support their request for EPSL or FMLA Extension leave. Specifically, an employer may ask an employee to provide the following information:
- employee’s name;
- date(s) for which leave is requested;
- the qualifying reason for the leave;
- a statement that the employee is unable to work because of the qualifying reason for the leave;
- the name of the government entity that issued the quarantine or isolation order, if applicable;
- the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19, if applicable;
- the name of the government entity that issued the quarantine or isolation order to which the individual being care for is subject, if applicable;
- the name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19, if applicable; and
- for leave necessitated by a school closing or child care provider’s unavailability: (i) the name of the son or daughter being cared for, (ii) the name of the school, place of care, or child care provider that has closed or become unavailable, and (iii) a representation that no other suitable person will be caring for the child during the period of EPSL or FMLA Expansion paid leave.
- The regulations state that an employer is required to retain all paid leave related documentation for four years, regardless of whether the leave was granted or denied. If an employee provides an oral statement to support his or her request for EPSL or FMLA Expansion, the employer is required to document and maintain such information. An employer that denies an employee’s request for EPSL or FMLA Expansion must document its determination as to why the denial was appropriate. In order to claim tax credits from the Internal Revenue Service (IRS) for the paid leave provided to employees, the regulations direct an employer to retain the following records for four years:
- Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including records of work, telework, EPSL and FMLA Expansion;
- Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages;
- Copies of any completed IRS Forms 7200 that the employer submitted to the IRS;
- Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941, and
- Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit.
More detailed information is available from the IRS at the following link: https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs
- The usual FMLA employer notice requirements, such as notice of eligibility and rights and responsibilities, as well as the designation notice, are not required for FMLA Expansion leave.
- While the FMLA Expansion adds another reason for which an employee may take FMLA leave, it does not add 12 more weeks of FMLA leave entitlement.
Employers are encouraged to review the regulations themselves, which can be found at the following link: https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-07237.pdf
For more information, or for assistance with other employment-related questions pertaining to the COVID-19 pandemic, please contact Amy McLaughlin (firstname.lastname@example.org), Karen McAndrew (email@example.com), Maggie Platzer (firstname.lastname@example.org), or Kendall Hoechst (email@example.com).