U.S. DOL Temporary Rule Concerning FFCRA Provides Important Guidance to Employers

On April 1, 2020, the U.S. Department of Labor (DOL) issued its Temporary Rule concerning the Families First Coronavirus Response Act (FFCRA), which the President signed into law on March 18, 2020. This Temporary Rule provides important guidance to employers concerning The Emergency Paid Sick Leave Act (EPSLA) and The Emergency
Family and Medical Leave Expansion Act (EFMLEA) contained within the FFCRA. (See our prior Alert) The DOL’s publication is 124 pages long and incorporates guidance provided in its Frequently Asked Questions document (FAQ) available on the DOL’s website: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions as well as important new information. The following are five key takeaways for employers in the new regulations.

1. Established Criteria For Small Business Exemption. The FFCRA indicated that employers with fewer than 50 employees may qualify for an exemption from the requirement to provide emergency sick leave under the EPSLA and expanded FMLA leave under the EFMLEA (“expanded FMLA leave”) when the imposition of such requirements would jeopardize the viability of the business as a going concern. The new regulations provide the criteria to qualify for that exemption. A small business will qualify for the exemption if an authorized officer of the business has determined that one or more of the following three conditions exist:
   • The leave requested would result in the business’s expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
   • The absence of the employee(s) requesting the leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
   • There are not 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(s) requesting leave and these services are needed for the business to operate at a minimal capacity.

To elect this small business exemption, the employer must document that a determination has been made pursuant to the above criteria, but should not send such documentation to the DOL; rather, the employer should retain the records in its files. The business must still post notice to employees of their rights under the FFCRA (the DOL has issued a model poster available on its website) even if the business determines that it qualifies for the exemption.

2. Employer and Employees must mutually agree upon Intermittent Leave. The new regulations provide that emergency sick leave and expanded FMLA leave may be taken intermittently, but only if both the employer and employee agree. While it is a best practice for any such agreement to be in writing, the regulations specify that a clear and mutual understanding, even if not in writing, is sufficient. The regulations also recognize that, due to public health concerns, the availability of intermittent leave and how it may be used will depend on whether the employee is reporting to the workplace or working remotely and the reasons for the leave.
   • Reporting to Worksite. For an employee reporting to work, an employee taking leave in order to care for a son or daughter whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 may take the entire portion of emergency sick leave and/or expanded FMLA leave intermittently in any increment of time agreed upon by the employer and employee. However, an employee reporting to work is prohibited from taking intermittent leave for any of the other emergency sick leave reasons.
   • Teleworking. By contrast, an employee teleworking may take any type of qualifying leave intermittently and in any agreed increment of time (but only when the employee is unavailable to telework because of a COVID-19 related reason).

3. Concurrent Use of Leave. The new regulations clarify that emergency sick leave and expanded FMLA are designed to work in tandem to provide a continuous stream of income to eligible employees. Thus, an employee seeking leave in order to care for a son or daughter whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 may concurrently take emergency sick leave under the EPSLA and expanded FMLA leave under the EFMLEA. For the first two weeks, the employee will be entitled to two-thirds of their average regular rate of pay pursuant to the EPSLA and will continue to receive the same rate of pay for the next ten weeks under the EFMLEA.

While the new regulations remain somewhat unclear concerning the interplay between paid leave under FFCRA and preexisting employer provided leave, the DOL’s FAQ provide some clarification.

3. • During the two weeks of EPSLA, an employee may not simultaneously use paid leave under the EPSLA and preexisting paid leave, unless the employer agrees to allow the employee to supplement the amount the employee is receiving from EPSLA with preexisting paid leave, up to the employee’s normal earnings.
   • During the first two weeks of unpaid expanded family and medical leave under the EFMLEA, an employee may use paid leave under the EPLSA, but may not simultaneously use preexisting paid leave, unless the employer agrees to allow the employee to supplement the amount the employee receives from EPSLA with the employee’s preexisting paid leave, up to the employee’s normal earnings.
   • After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, however, an employee may elect—or be required by the employer—to take the remaining expanded family and medical leave at the same time as any preexisting paid leave that, under the employer’s policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off (i.e., vacation or PTO), but not medical or sick leave if the employee is not ill.

4. Employee Notice of Need For Leave. An employee must provide reasonable notice to the employer of the need for leave. Whether the notice was reasonable or not will be determined under the facts and circumstances of each case. That being said, the regulations provide specific direction concerning what information and documentation an employee must provide and limits on what an employer may require concerning various reasons for leave.
5. Recordkeeping. The new regulations require employers to keep for four years (1) all documentation which employees are required to provide to the employer in order to satisfy the criteria for the leave and (2) all documentation justifying the denial of leave to an employee based on the small business (under 50 employees) exception. The new regulations also recommend that employers keep for four years certain IRS and other documents necessary to claim the IRS tax credit.

In addition to the above-described topics, the new DOL Temporary Rule provides guidance to employers on many other critical issues, such as the method for calculating the average regular rate of pay to employees under both the EPSLA and the EFMLEA; the calculation of leave entitlement for part-time employees; non-discrimination and retaliation provisions; and enforcement provisions.

If you have questions about the topics addressed in this Alert, please contact the author:

Jeffrey Dretler | jdretler@rubinrudman.com | 617.330.7078

Or any of our Labor & Employment legal professionals:

James Cox | jcox@rubinrudman.com | 617.330.7089

Denise Murphy | dmurphy@rubinrudman.com | 617.330.7123

Alfred Gray, Jr. | agray@rubinrudman.com | 617.330.7079

Paul Hodnett | phodnett@rubinrudman.com | 617.330.7134

Elizabeth Sullivan | esullivan@rubinrudman.com | 617.330.7009