The Department of Labor Issues New Regulations on the FFCRA

April 6, 2020

Downey Brand COVID-19 News and Updates

Last week, the Department of Labor (“DOL”) issued new regulations regarding the Families First Coronavirus Response Act (“FFCRA”).  These regulations address a variety of topics, including which employees are eligible for paid sick leave when subject to a quarantine order, when the small employer exemption applies, what documentation is needed to obtain paid leave, and how the FFCRA’s leave requirements interact with pre-existing leave laws.  Each of these topics is briefly discussed below.

Under the FFCRA, one qualifying reason to take emergency paid sick leave is an employee’s inability to work because he or she is subject to a COVID-19 quarantine or isolation order.  Previously, there was uncertainty as to whether certain California employees qualified for paid sick leave on this basis because Governor Newsom’s March 19, 2020 order did not use the terms “quarantine” or “isolation.”  However, the regulations now clarify that quarantine or isolation orders include any orders advising citizens to shelter in place, stay at home, or otherwise restrict their mobility.  Thus, Governor Newsom’s order requiring Californians to shelter in place does provide grounds for certain employees to take paid sick leave based on their inability to work.

At the same time, the regulations clarify that employees subject to a shelter in place order may not take paid sick leave when their employer does not have work for them.  For example, if a coffee shop is temporarily closed due to a downturn in business related to COVID-19, its cashiers may not take paid sick leave.  This is because they are unable to work since the coffee shop is closed, not because they are subject to a shelter in place order.

The regulations also clarify the FFCRA’s small employer exemption and detail when small businesses may deny emergency paid sick leave.  Specifically, a small business with less than 50 employees is exempt from providing paid sick leave under the following circumstances:

1. The leave would cause its expenses and financial obligations to exceed available business revenue and cause the business to cease operating at a minimal capacity;
2. The absence of the employee requesting leave would pose a substantial risk to the business’s financial health or operational capacity because of the employee’s specialized skills, knowledge, or responsibilities; or
3. The business cannot find enough other workers who are available, able, willing, and qualified to perform the labor or services the employee requesting leave provides, and the employee’s labor or services are needed for the business to operate at a minimal capacity.

Additionally, the regulations clarify what documentation is needed for an employee to obtain paid leave.  Specifically, the employee must provide a signed statement containing (1) his or her name, (2) the date(s) of leave being requested, (3) the COVID-19 qualifying reason, and (4) a statement the employee cannot work or telework because of the qualifying reason.  For certain qualifying reasons, additional information is required in the employee’s statement.  An employee seeking leave pursuant to a quarantine or isolation order must provide the name of the government entity issuing the order to which the employee is subject.  Next, an employee seeking leave based on a healthcare provider advising self-quarantine must provide the name of the healthcare provider advising the quarantine.  Similarly, an employee requesting leave to care for an individual subject to a quarantine or isolation order, or advised by a healthcare provider to self-quarantine, must provide either (1) the government entity issuing the quarantine or isolation order the individual is subject to, or (2) the name of the health care provider advising the quarantine.

Meanwhile, an employee seeking leave to care for a child due to school or child care closures must provide (1) the child’s name, (2) the closed school or unavailable care provider’s name, and (3) a statement representing that no other suitable person is available to care for the child.  Additionally, for leave taken under the Family and Medical Leave Act (“FMLA”) for an employee’s own serious health condition related to COVID-19, or to care for the employee’s spouse, child, or parent with a serious health condition related to COVID-19, the normal FMLA certification requirements still apply.  Thus, employers may request information regarding the individual’s healthcare provider, the date the serious health condition began, and how long the serious condition will last, as employees are normally eligible for up to twelve workweeks of leave per year under the FMLA.

Critically, an employer must retain all documentation that its employees provide for requested leaves under the FFCRA for four years, regardless of whether the leaves were granted.  Retaining this documentation is also necessary so that employers can support their related claims for tax credits.

Lastly, the DOL’s regulations also confirm its prior guidance regarding the interaction between the FFCRA’s leave requirements and pre-existing leave laws and employer policies. The regulation confirms that emergency paid sick leave is “in addition to,” and not a substitute for, other sources of leave that the employee already accrued, was entitled to, or had previously used before the FFCRA’s April 1, 2020 effective date.  The regulation also clarifies that even though some employers voluntarily offered leave to help their employees before April 1st, the FFCRA still requires those employers to provide the entirety of the paid sick leave and expanded family and medical leave to employees who are eligible.

For additional guidance on the FFCRA, please refer to our March 20, 2020 and March 29, 2020 Legal Alerts.

Downey Brand employment law attorneys continue to track COVID-19 issues impacting the workplace. Please reach out to the Downey Brand attorney you regularly work with, or to any of the attorneys throughout our Firm if you have further questions or concerns.