Expanded FMLA

Emergency Sick Leave

DOL Regulations Fact Sheet

The Families First Coronavirus Response Act (the “Act”) was passed on March 19, 2020 and went into effect on April 2, 2020. Division C of the Act, the Emergency Family Medical Leave Expansion Act (EFMLEA), expands the FMLA to permit up to twelve weeks of paid leave for employees who must take off work to care for a child whose school or daycare has closed due to the coronavirus a/k/a COVID-19, and Division E of the Act, the Emergency Paid Sick Leave Act (EPSLA) creates a new federally-mandated two week paid sick leave to employees affected by COVID-19.

As required by the Act, on April 1, 2020, the Department of Labor (DOL) issued new regulations to implement the provisions of the EFMLEA and EPSLA and to otherwise clarify the Act, with such regulations taking effect on April 2, 2020.

Under the EFMLEA as passed by Congress, qualifying employees are entitled to 12 weeks of paid FMLA leave, with the first 10 days of such leave being unpaid (though an employee may use other paid leave, including sick leave under the EPSLA, so that the employee may be paid during this otherwise unpaid period). While the use of “10 days” rather than two weeks for the unpaid leave period causes no issue when dealing with employees who work a traditional five-day-a-week schedule, problems arise when the rule is applied to employees who do not work five days a week. For example, in the case of an employee who works four ten-hour days per week, the employee’s unpaid period under the EFMLEA would last two weeks and two days rather than just two weeks.

In order to harmonize the 10-day unpaid leave period of the EFMLEA with the two week paid sick leave provisions of the EPSLA, the DOL has determined that the 10-day unpaid leave period under the EFMLEA will be treated as two workweeks, regardless of an employee’s schedule.

Under the EFMLEA, employers of employees who meet the definition of health care provider may exempt such employees from the EFMLEA. However, the term “health care provider employee” was narrowly defined to essentially only include licensed doctors, nurses, physician assistants, etc. Under the EPSLA, Congress granted authority to the DOL to additionally define, and exempt, health care provider employees from the provisions of the EPSLA.

The DOL regulations now greatly expand the definition of health care provider employee, and apply the definitions to both the EFMLEA and the EPSLA. Under the regulations, a health care provider employee is defined to include anyone employed “at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.” The definition of healthcare provider employee also applies to the employees of any contractor that provides services to hospitals, clinics, etc., which support the operation of the facilities.

Both the EFMLEA and EPSLA apply to all employers who employ fewer than 500 employees (subject to potential exceptions for employers of fewer than 50 employees). The DOL regulations clarify how the 500 employee threshold is calculated:

• To determine the number of employees employed, the employer must count all full-time and part-time employees employed within the United States at the time an employee would take leave.

• All employees are counted, regardless of how long they have been employed.

• Employees who are on leave of any kind are counted.

• Employees provided by a temp agency are included.

• Independent contractors are not counted.

• Employees who have been laid off or are on furlough are not counted.

Both the EFMLEA and EPSLA permit the DOL to exempt, by regulations, employers with fewer than 50 employees from the requirements of the EFMLEA and EPSLA if forcing the employer to comply would jeopardize the viability of the business as a going concern. Under the DOL regulations, employers with fewer than 50 employees may deny EFMLEA or EPSLA leave requests if an authorized officer of the business determines that honoring the leave request:

• 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;

• would entail a substantial risk to the financial health or operational capabilities of the business because of the requesting employee’s specialized skills, knowledge of the business, or responsibilities; or

• would result in there not being 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 requesting leave, and that these labor or services are needed for the small business to operate at a minimal capacity.

Under the regulations, the DOL has clarified that for employers already covered by the FMLA, the paid leave under the EFMLEA is not in addition to FMLA leave. For example, if an employee has already used up his or her 12 weeks of ordinary, unpaid FMLA leave, the employee is not entitled to an additional twelve weeks of paid EFMLEA leave. If an employee has used five weeks of regular FMLA leave, the employee is only entitled to seven weeks of EFMLEA leave.

The DOL regulations clarify what documentation employers may request when employees take leave under either the EFMLEA or EPSLA:

• An employee is required to provide documentation containing the employee’s name, date(s) for which leave is requested, and the qualifying reason for the leave, together with an oral or written statement that the employee is unable to work because of the qualified reason for leave.

• To take paid sick leave due to an official quarantine or isolation order (or to take care of someone subject to such an order), the employee must provide the name of the government entity that issued the order.

• To take paid sick leave due to a health care provider advising the employee to be under self-quarantine (or to take care of someone subject to such advice), the employee must provide the name of the health care provider.

• To take sick leave or EFMLEA leave to care for a son or daughter whose daycare has closed, the employee must provide the name of the son or daughter being cared for, the name of the school or daycare that is closed, and a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes the paid sick leave or EFMLEA leave.