On April 1, 2020, the U.S. Department of Labor issued a temporary final rule that provides additional guidance and clarification on multiple issues relating to the paid leave requirements of the Families First Coronavirus Response Act (“FFCRA”). Important questions have been answered, including whether a government-imposed shelter in place or stay at home order is a “quarantine or isolation order” for one type of FFCRA leave.
The FFCRA took effect on April 1, 2020, just hours before these regulations were issued, although the agency is allowing a temporary period of non-enforcement through April 17, 2020, provided the employer has made reasonable, good faith efforts to comply.
Highlights of these regulations include:
- Quarantine or isolation orders include federal, state or local shelter in place and stay at home orders. Isolation or quarantine orders could mean the employee is unable to work even though their employer has work for the employee. An employee does not qualify for FFCRA leave, however, if no work is available (due to a closing or layoff, for example) or if the employee is able to telework despite the stay at home order.
- Qualifying individuals to care for an individual who is quarantined or self-quarantined must be the employee’s immediate family member, a person who resides in the employee’s home, or a similar person whose relationship with the employee creates an expectation that the employee would care for this person. It does not include a person with whom the employee has no personal relationship.
- When caring for an individual who is quarantined or self-quarantined, the employee must be needed to care for the individual and the employee must be unable to go to work or telework. FFCRA leave does not apply if the employee would not be working due to lack of work.
- Leave to care for a son or daughter due to school or childcare closure is available only if no other suitable person is available to care for the child.
- An employee can be eligible for the extended FMLA leave to care for a child due to school or childcare closure if the employee was laid off or otherwise terminated on or after March 1, 2020, rehired before December 31, 2020, and was on the payroll for 30 of the 60 calendar days prior to being laid off or terminated.
- Healthcare providers have the option to exempt any of their employees from paid leave under the FFCRA, but they can elect not to do so and, if they provide such leave, receive the available payroll tax credit.
- Employees may take intermittent leave under the FFCRA to care for a child due to school or childcare closure if the employee and the employer agree to such leave, regardless if the employee works from home or goes to the worksite. Employees may take intermittent leave under the FFCRA for other reasons only if the employee and the employer agree and only if the employee teleworks when not taking the paid leave (i.e., not if they go to the worksite).
- If an employee takes paid sick time for reasons that do not include caring for a child whose school or childcare is closed, but later wants or needs to take leave under the extended FMLA to care for a child due to school or childcare closure:
- the first two weeks (of that potential 10 week period) may be unpaid; or
- the employee can choose or the employer can require, that the employee use their regular company-provided paid leave to cover that time period.
- Except for leave to care for a child due to school or childcare closure, an employee is not required to provide advance notice of the need to take paid sick leave under the FFCRA. Rather, the employee may be required to give reasonable notice (i.e., as soon as practicable) after the first work day for which the employee takes paid sick leave.
- Documentation regarding employee requests for, granting of, and denial of FFCRA leave must be retained for four years.
If you have any questions regarding these regulations, please contact your Bose McKinney & Evans labor and employment attorney.