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Employer Updates on Stay-at-Home Orders and Implementation of the Paid Leave Provisions of the FFCRA

By Joan M. Vecchioli, Colleen M. Flynn & Rachael L. Wood | Categories: Articles, COVID-19 task force, Labor & Employment | Share April 2020

STATEWIDE STAY-AT-HOME ORDER

On April 1, 2020, Governor DeSantis issued a statewide “Stay-at-Home” Order (the “Order”).  This Order supersedes all similar local orders, including Pinellas County’s and Hillsborough County’s previous Safer-at-Home orders.  In light of Governor DeSantis’ Order, Pinellas County has extended its local state of emergency and local order to require that all non-essential businesses close by midnight, Thursday, April 2, 2020.  This includes any business not exempted by the Order.  Furthermore, senior citizens and people with significant underlying health conditions must stay home and take all measures to limit their risk of exposure of COVID-19. All others can leave home only to obtain essential services or perform essential activities.  Individuals not included in the COVID-19 high-risk category can continue to go to essential businesses, visit relatives who need help or care, open parks & outdoor recreational areas, golf courses, and boat ramps and marinas.  Pinellas County’s response to the Order can be found at Pinellas County News: County Commission Extends Local State of Emergency, Expands on Local Orders.  The Pinellas County Sheriff’s Office has also created guidance as to which businesses are non-essential and other matters relating to the Order, which can be found on the google document:  PCSO Safer at Home Guidance.  The City of Tampa has also issued a similar response, which can be found  on the City of Tampa, Emergency Management, Safer at Home website.    

DOL ISSUES TEMPORARY RULE IMPLEMENTING THE PAID LEAVE PROVISIONS OF THE FFCRA

Also, on April 1, 2020, the Department of Labor (“DOL”), published the temporary rule for Paid Leave under the Families First Coronavirus Response Act (the “Rule”), which is promulgated by the Secretary of Labor.  The Rule will be published in the Federal Register on April 6, 2020, but is effective as of April 1, 2020.  Unlike the prior Q&As published by the DOL, the Rule is more than just simple guidance.  Rather, the Rule governs the interpretation and enforcement of the paid leave provisions of the Families First Coronavirus Response act (“FFCRA”), which include The Emergency Paid Sick Leave Act (“EPSLA”) and The Emergency Family and
Medical Leave Expansion Act (“EFMLEA”).  All employer should review the Rule at the link above as it substantially expands and clarifies the language in the FFCRA legislation.  This article cannot address each and every provision of the Rule, but we have attempted to highlight key sections and definitions that we believe provide the most significant clarifications to the original legislation.

Telework:

The term “telework” means no less work than if it were performed at an employer’s worksite.  As such, employees who are teleworking must always record and be compensated for all hours actually worked.  If, however, an employee is teleworking due to COVID-19 and the employer allows flexible scheduling, such as working unconventional hours or allowing breaks to care for a child, the DOL has determined that an employer is not required to count all hours between the first and last principal activity by an employee teleworking, but rather for the hours actually worked.  If an employee is teleworking for non-COVID-19 reasons, then the continuous workday still applies.  

Federal, State or Local Quarantine or Isolation Order:

Under the EPSLA, an employee may take paid sick leave if the employee is unable to work because the employee is subject to a federal, state, or local COVID-19 quarantine or isolation order.  The Rule clarifies that this includes a broad range of orders including shelter in place and stay at home orders, such as Governor DeSantis’ April 1, 2020 Safer at Home Order, which defines essential services and activities and requires individuals to restrict their movements outside the home to obtain or provide essential services and activities.  An employee, however, is only entitled to take paid leave under the EPSLA if the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order.  An employee is not entitled to leave under the EPSLA if the employer does not have work for the employee.

Seeking a Medical Diagnosis: 

An employee may take leave under the EPSLA when the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.  Paid sick leave taken for this reason must be limited to the time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis, such as time spent making, waiting for, or attending an appointment for a test for COVID-19.  An employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.  

Leave to Care for Son or Daughter: 

The Rule clarifies that the leave under the EFMLEA is the same as the fifth reason under the EPSLA – leave required when an employee is unable to work because of a need to care for the employee’s son or daughter if the school or place of care of the son or daughter is closed, or the child care provider is unavailable due to COVID-19 related reasons.  The Rule provides that the term “son or daughter” for purposes of both the EPSLA and EFMLEA also includes children 18 years of age or older who are incapable of self-care because of mental or physical disability.  It also clarifies that a “child care provider” does not have to be compensated or licensed if the child care provider is a family member or friend, such as a neighbor.  An employee, however, generally does not need to take paid sick leave if another suitable individual such as a co-parent, co-guardian, or the usual child care provider is available.

Amount of Paid Sick Leave: 

For purposes of the EPSLA, an employee is considered to be full-time and therefore entitled to 80 hours of paid sick leave if the employee is normally scheduled to work at least 40 hours each workweek.  An employee who does not have a normal weekly schedule is considered to be a full-time employee if the average number of hours per workweek that the employee was scheduled to work, including hours for which the employee took leave of any type, is at least 40 hours per workweek over a period of time that is the lesser of: (i) the six-month period ending on the date on which the employee takes leave under the EPSLA; or (ii) the entire period of the employee’s employment.

Employees who do not meet the definition of full-time are considered part-time.  If the part-time employee has a normal weekly schedule, the employee is entitled to up to the number of hours of paid sick leave equal to the number of hours that the employee is normally scheduled to work over two workweeks.  If the employee does not have a regular schedule, then the employer must use one of two calculation methods identified in the Rule.

Period of Unpaid Leave under the EFMLEA: 

The DOL recognizes that the EPSLA and the EFMLEA should work in conjunction with each other; therefore, the Rule states that the unpaid period under the EFMLEA lasts for two weeks rather than 10 days to ensure consistency between the two types of leave.

Amount of Pay Under the EFMLEA: 

Under the EFMLEA, an employer must pay the employee  two-thirds of the employee’s average regular rate of pay times the employee’s scheduled number of hours for each day of such leave taken, up to $200 per day and $10,000 in the aggregate per employee.  If the employee has a normal work schedule, the employee is entitled to the number of hours the employee is normally scheduled to work on that workday.  If an employee has a schedule such that the employer is unable to determine the number of hours the eligible employee would have worked on the day for which leave is taken or the number of hours the eligible employee would have worked on the day for which leave is taken, then the employer must use one of the calculation methods set forth in the Rule.   

Average Regular Rate of Pay: 

For purposes of paying leave under the EPSLA and the EFMLEA, the employer must use the “average regular rate of pay”.  The average regular rate of pay must be calculated using one of the two methods explained in the Rule.  An employee’s commissions, tips, and piece rates are incorporated into the regular rate for purposes of the FFCRA.  

Eligibility Under EFMLEA: 

To be eligible for EFMLEA, an employee must have been on the employer’s payroll for at least thirty (30) calendar days prior to the day the employee’s leave would begin.  The Rule also clarifies that an employee who is laid off or otherwise terminated on or after March 1, 2020, is nevertheless, also considered to have been employed for at least thirty (30) days, provided the employer rehires or reemploys the employee on or before December 31, 2020 and the employee had been on the employer’s payroll for thirty (30) or more of the sixty (60) calendar days prior to the date of the employee’s lay off or termination.  

Exclusion of Health Care Providers and Emergency Responders: 

An employer may exclude employees who are health care providers or emergency responders from the leave requirements of the FFCRA.  An employer, however, is not required to exercise this option.  If an employer does not elect to exclude an otherwise-eligible health care provider or emergency responder from taking paid leave under the EPSLA or the EFMLEA, such leave is subject to all other requirements of the FFCRA, and should be treated in the same manner for purposes of the tax credit created by the FFCRA.  To minimize the spread of COVID-19, the DOL encourages employers to be judicious when using this definition to exempt health care providers and emergency responders from the provisions of the FFCRA.  It is important to remember that an employer’s decision to exclude health care providers or emergency responders from the paid leave provisions of the FFCRA does not impact an employee’s earned or accrued sick, personal, vacation, or other employer-provided leave under the employer’s established policies.  

The term “health care providers”, for exclusion purposes, includes any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency.  The definition includes, but is not limited to, anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary 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 term “emergency responder” includes anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19.

Employer Coverage:

To determine the number of employees employed, a private employer must count all full-time and part-time employees employed within the United States at the time the employee would take leave.  For purposes of this count, every part-time employee is counted as if he or she were a full-time employee.  All common employees of joint employers or all employees of integrated employers must be counted together.  The FLSA’s test for joint employer status applies in determining who is a joint employer for purposes of coverage, and the FMLA’s test for integrated employer status applies in determining who is an integrated employer.  The number of employees does not include workers who are independent contractors, rather than employees, under the FLSA nor does the number of employees include workers who have been laid off or furloughed and have not subsequently been reemployed.

Small Business Exemption:

An employer, including a religious or nonprofit organization, with fewer than 50 employees is exempt from providing paid sick leave related to the care of a son or a daughter due to school closure or unavailability of the child care provider when the imposition of such requirements would jeopardize the viability of the business as a going concern. To elect this small business exemption, the employer must document that a determination has been made pursuant to the three criteria set forth by the Rule: (i) the leave requested 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; (ii) the absence of the employee or employees requesting 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 (iii) 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 or employees requesting leave, and these labor or services are needed for the small business to operate at a minimal capacity.  An employer that denies an employee’s request for leave under the small business exemption shall document the determination by its authorized officer that it is eligible for such exemption and retain such documentation for four (4) years. 

Notice:

Every employer who is covered by the FFCRA’s paid leave provisions must post and keep posted a notice explaining the FFCRA’s paid leave provisions, regardless of whether the employer intends to claim the small business exemption or exclude health care providers or emergency responders.  The notice can be found on the DOL’s website: COVID-19 and the American Workplace.

Documentation Required for Leave:

An employee is required to provide the employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA or Expanded Family and Medical Leave under the EFMLEA:

  1. Employee’s name; 
  2. Date(s) for which leave is requested; 
  3. Qualifying reason for the leave; and 
  4. Oral or written statement that the employee is unable to work because of the qualified reason for leave.

Specific, additional documentation is also required from the employee depending on the reason for requesting leave:

  • To take paid seek leave due to a federal, state or local quarantine or self-isolation order, an employee must provide the employer with the name of the government entity that issued the quarantine or isolation order;
  • To take paid sick leave due to seeking medical care from a health care provider or being advised by a health care provider (which for this purpose is restricted to licensed doctors of medicine or osteopathy and any other person determined by the Secretary of Labor to be capable of providing health care services) to self-quarantine, an employee must provide the employer with the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19;
  • To take paid sick leave due to needing to care for an individual pursuant either of the above reasons, the employee must provide to the employer either 1) the name of the government entity that issued the quarantine or isolation Order to which the individual being cared for is subject; or 2) the name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19;
  • To take paid leave to care for a son or daughter whose school or place of care has closed or the child care provider is unavailable due to COVID-19 related reasons, the employee must provide to the employer (1) the name of the son or daughter being cared for; (2) the name of the school, place of care, or child care provider that has closed or become unavailable; and (3) a representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes leave under the EPSLA or EFMLEA.

The employee must also provide any additional information needed for the employer to support a request for tax credits pursuant to the FFCRA.  Employers can find additional information at  COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs.

Recordkeeping:

An employer is required to retain all documentation required for leave under the Rule for four (4) years, regardless whether leave was granted or denied.  If an employee provided oral statements to support his or her request for leave under the EPSLA or the EFMLEA, the employer is required to document and maintain such information in its records for four (4) years.  In order to claim tax credits from the IRS, an employer is advised to maintain the following records for four (4) years: 

  1. Documentation to show how the employer determined the amount of paid sick leave and expanded family and medical leave paid to employees that are eligible for the credit, including records of work, telework and Paid Sick Leave and Expanded Family and Medical Leave; 
  2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages; 
  3. Copies of any completed IRS Forms 7200 that the employer submitted to the IRS; 
  4. Copies of the completed IRS Forms 941 that the employer submitted to the IRS or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on IRS Form 941, and 
  5. Other documents needed to support its request for tax credits pursuant to IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, which can be found at COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs.  

The Rule has many other provisions and nuances that have not be addressed in this article.  In addition, all COVID-19 personnel decisions should take into consideration other applicable federal, state, and local laws.  We encourage you to continue to seek our guidance during these uncertain times.  We are hopeful, however, that with the promulgation of this Rule, employers can begin to implement the paid leave provisions of the FFCRA with some level of clarity.  

THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.  LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.


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