DOL ISSUES REGULATIONS ON EMERGENCY FMLA AND PAID SICK LEAVE PROVISIONS UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The Department of Labor (“DOL”) issued regulations to address the Emergency Family Medical Leave Act (“EFMLA”) and Emergency Paid Sick Leave Act (“EPSLA”) provisions of the Families First Coronavirus Response Act, which became effective April 1, 2020. The regulations provided some additional guidance on when employees may take these newly mandated COVID-19 related leaves.

COVID-19 Paid Sick Leave

  • Employees can take EPSLA if the employee is “subject to a quarantine or isolation order.” This includes when employees are ordered to quarantine by a governmental authority because they have a pre-existing medical condition.

  • An employee is “seeking medical diagnosis for COVID-19” if the employee is taking affirmative steps to obtain a medical diagnosis including making, waiting or attending an appointment for a COVID-19 test.

  • Employees may take 80 hours to care for an individual who is an immediate family member, a person who regularly resides in the employee’s home or a person who has a relationship with the employee that creates an expectation that the employee would care for them.

  • Employees can only use 80 hours of EPSLA even if they experience a second qualifying event. For instance, an employee takes the leave because they care for an ill family member and then they become sick with COVID-19. The employee would not be allowed a second 80 hours for their illness.

  • Employees may qualify for EPSLA if the employee is on the employer’s payroll.

COVID-19 FMLA Leave

  • Employees may qualify for EFMLA if the employee has been employed for at least thirty calendar days before the request for leave.

  • Employees placed by a temporary agency who are subsequently hired by an employer may count the days worked as a temporary employee with the employer.

  • EFMLA leave is only available to parents caring for their son or daughter under the age of 18 because of the closure of their children’s school or childcare center.

  • For EFMLA, a school or childcare center is “closed” even if the school is participating in remote learning.

  • EFMLA is available to parents who are at home caring for a disabled person over the age of 18, if the individual’s school or care center is closed.

  • Employees cannot take EPSLA and EFMLA if a co-parent, co-guardian, grandparent or usual childcare provider is available to provide childcare.

Intermittent Leave

  • Employees may take their EFMLA/EPSLA leave intermittently while teleworking from home.

  • Employees may take intermittent leave so long as the employer and employee agree.

  • Intermittent leave is not available for employees who are sick with COVID-19 and in quarantine, self-quarantine, seeking diagnosis for COVID-19, caring for someone who has COVID-19 or caring for someone who is subject to a self-quarantine order.

Needed Documentation for Leave

  • Employees must document the leave by providing the following information: (1) employee’s name, (2) dates for which the leave is required, (3) qualifying reason for the leave, and (4) an oral or written statement why employee needs the leave.

  • For EPSLA for COVID-19, the employee must also provide the name of the health care provider who diagnosed the employee with COVID-19.

  • For EPSLA to care for someone, the employee must provide the name of the health care provider who diagnosed the person who the employee is caring for.

  • For EPSLA and EFMLA, the employee must offer the name of the school or childcare facility that closed and also provide that no other suitable person is available to care for the children.

Small Business Exemption

  • Employers may request that the DOL exempt them from providing EFMLA and EPSLA if (1) they have 50 or fewer employees and (2) the imposition of such requirements would jeopardize the viability of the business.

  • A small business may qualify for the “hardship” exemption if: (1) the business’s expenses exceed the available revenue, or (2) the employee’s absence for EFMLA or EPLSA would entail a “substantial risk” to the business’s survival, or (3) there are not sufficient workers to perform labor or services if the employees are allowed leave and would prevent the business from operating at minimal capacity.

Additional Provisions

  • Employees cannot take EFMLA or EPSLA if the “employer does not have work for the employee.” Employees must collect unemployment – not EFMLA or EPSLA- if the employer has no work for the employee.

  • Employers must maintain their employee’s health care coverage while they take EPSLA or EFMLA but may require the employee to continue to pay their contribution toward a group health plan.

  • Employees are not entitled to unilaterally take EFMLA or EPSLA without providing the employer with required information. For instance, an employee may not take paid sick leave if the employee unilaterally decides to self-quarantine for an illness without medical advice.

  • While these leave laws became effective on April 1, 2020, the DOL will not bring enforcement actions until after April 17, 2020, if the employer made reasonable, good faith efforts to comply with the EFMLA and EPLSA requirements.

Pannone Lopes Devereaux & O’Gara LLC employment attorneys will continue to update employers as the DOL issues additional guidance and regulations regarding the new Families First Coronavirus Response Act. If you have questions, please contact PLDO Partner Matthew C. Reeber at 401-824-5105 or mreeber@pldolaw.com or PLDO Principal William E. O’Gara at 401-824-5117 or wogara@pldolaw.com.



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