U.S. Department of Labor Published Families First Coronavirus Response Act Regulations

On April 1, 2020, the United States Department of Labor issued federal regulations with regard to the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), both part of the Families First Coronavirus Response Act (FFCRA). These regulations are comprehensive and are currently being reviewed in detail by Keller Thoma attorneys. The following clarifies key questions related to this new federal legislation, which went into effect on April 1, 2020. Should you have specific questions related to the implementation of the leave provisions set forth in the EPSLA and EFMLEA, please do not hesitate to contact your Keller Thoma attorney.

Does Michigan Governor Gretchen Whitmer’s “Stay Home, Stay Safe” Executive Order constitute a qualifying event for which an employee may take paid sick leave under the EPSLA?

Yes, to the extent that the employee is prevented from working or teleworking because he or she is subject to an “quarantine or isolation order.” This would not apply for workers who are classified as “critical infrastructure workers” under the Order, as those employees are not subject to the Governor’s Order.

Can an employee take leave under both EPSLA and EFMLEA?

Yes, an employee who needs to leave to care for his or her child whose school or place of care is closed or whose childcare provider is unavailable due to COVID-19 related reasons may be eligible to take leave under both EPSLA and EFMLEA. The first two weeks of leave (up to 80 hours) may be paid under the EPSLA; the subsequent weeks are paid under the EFMLEA.

What is the maximum amount of hours of paid sick leave an employee make take under the EPSLA?

An employee may take up to two weeks – or ten days – of paid sick leave under the EPSLA. For example, if an employee who works seven and one-half (7.5) hours each day for five days each workweek, or for a total of 37.5 hours per week, he or she is entitled to 75 hours of paid sick leave under the EPSLA. Similarly, if an employee works six hours (6) each day for four days each workweek, or for a total of 24 hours per week, he or she is entitled to 48 hours of paid sick leave under the EPSLA.

Can an employee use paid sick leave or expanded family and medical leave intermittently, rather than one continuous period?

Yes, but only if the employer and employee agree to such arrangement. When an employer and employee agree that an employee may take paid sick leave or expanded family and medical leave intermittently, the parties must also agree on the increments of time in which the leave may be taken.

Under what circumstances can an employee’s accrued paid leave under an employer’s policy run concurrently with expanded family and medical leave under the EFMLEA?

An employee’s accrued paid leave may run concurrently with the expanded family and medical leave in the following circumstances:

• First, an employee’s prior use of paid sick leave for a reason other than the need to care for a child due to school or childcare closure does not prevent him or her from requesting expanded family and medical leave. Under such circumstance, the employee may choose to substitute accrued paid leave during the first ten days of the unpaid expanded family and medical leave.
• Second, after the first two weeks of the expanded family and medical leave, an employer may require – or an employee may decide on his or her own – to take his or her existing paid leave concurrent with the remaining expanded family and medical leave as would be available to the employee to care for a child due to school or childcare closure (e.g., vacation, personal leave, or paid time off, but not medical or sick leave).

Under what circumstance can an employee’s accrued paid leave under an employer’s policy supplement the expanded family and medical leave under the EFMLEA?

An employer and employee can also agree to have accrued paid leave supplement the employee’s 2/3 pay, so that the employee receives the full amount of their normal pay.

What type of notice does an employer have to give to its employees of the FFCRA’s requirements?

The FFCRA requires that employers post and keep posted a notice (accessible: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf) of its requirements in a conspicuous place where employees or job applicants may view it. Additionally, an employer may distribute the notice to employees via email, post it electronically on an employee information website, or direct mail.

What type of documentation does an employee need to provide to request leave under the EPSLA and/or the EFMLEA?

An employee must provide an employer documentation containing the following information prior to taking paid sick leave or expanded family and medical leave:

• Employee’s name;
• Date(s) for which leave is requested;
• Qualifying reason for the leave;
• Oral or written statement that the employee is unable to work because of the qualified reason;
• The name of the government entity that issued the quarantine or isolation order that the employee or an individual to whom the employee is caring for is subject to;
• The name of the health care provider for an employee or an individual for whom the employee is caring in a circumstance where paid sick leave is taken because the health care provider advised to self-quarantine;
• The following information must additionally be provided for paid sick leave and/or expanded medical leave taken for the reason to care for a child because of a school, place of care, or childcare provider closed or is unavailable:
• • Name of the child being cared for;
  • Name of the school, place of care, or child care provider that is closed or unavailable; and
  • A representation that no other suitable individual will be caring for the child during the leave.

How is an employer who was not previously covered by the Family and Medical Leave Act (FMLA) to administer the expanded family and medical leave?

The DOL did not adopt employer notice regulations or obligations that are required under the FMLA regulations for expanded family and medical leave under EFMLEA. To the extent an employer has employees who are now eligible to use FMLA for the first time for a limited circumstance and limited period of time, Keller Thoma can assist with the employer’s administration and processing of the expanded family and medical leave in a manner consistent with FMLA’s requirements.