DOL Revises Coronavirus Leave Regs to Clarify Work Availability, Intermittent Leave and Notice Rules

from The Dish | October 2020

by New Hampshire Lodging & Restaurant Association

Building a Plan: Recommendations from TripAdvisor

By Christopher T. Vrountas, Esq. Vrountas, Ayer & Chandler, P.C. and Allison C. Ayer, Esquire,

The US Department of Labor recently revised its regulations under the Families First Coronavirus Response Act (“FFCRA” or “the Act”), one of the major pieces of Federal legislation passed in response to COVID-19. These revisions clarify certain workers’ rights and employers’ responsibilities under the FFCRA to address the continuing impact COVID-19 has had on business throughout the country.

Background on FFCRA.

The FFCRA, passed in March, requires employers with fewer than 500 employees to provide paid sick leave, and expanded family and medical leave, for specified reasons related to coronavirus, with 100% reimbursement by the government via a tax credit as follows:

2 weeks (up to 80 hours) of paid sick leave for employees unable to work because the employee him/herself is quarantined (pursuant to government order or advice of a health care provider), or is experiencing COVID-19 symptoms and seeking a medical diagnosis, OR because the employee is unable to work in order to care for another individual subject to quarantine, or to care for a child (under 18) whose school or child care provider is closed/unavailable for reasons related to COVID-19.

Employees taking leave because of their own COVID symptoms/quarantine must be paid at their regular rate of pay (up to a max of $511/day).

When the reason for leave is to care for someone else on quarantine or a child whose school is closed, the employee is paid at 2/3 the employee’s regular rate of pay (up to a max of $200/day).

up to an additional 10 weeks of paid expanded family and medical (FMLA) leave, paid at 2/3s the employee’s regular rate of pay (up to amax of $200/day), where an employee is unable to work and needs leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

All employees of covered employers are eligible for paid sick leave and employees employed for at least 30 days are eligible for expanded paid FMLA leave. Small businesses with fewer than 50 employees may qualify for an exemption. Covered employers must also

post in their workplaces this FFCRA notice explaining the Act’s available benefits. These leave benefits are set to expire December 31, 2020.

The Newly Revised Regulations.

This is the complete set of DOL revisions. The following provides a brief summary to orient you the new regulations:

Work must be available.

Among other things, the DOL revisions reaffirm and clarify the requirement that employees may take FFCRA leave only if work (or telework) would otherwise be available to them. This means that the COVID-qualifying reason for leave must be the actual reason the employee is unable to work. If an employee is unable to work for some other reason regardless of the COVID qualifying reason, for example because the employer is closed or does not have work available, the employee is not entitled to FFCRA leave. This work availability requirement applies to all reasons for FFCRA leave.

Certain leave may be taken intermittently with employer approval.

The revisions also reaffirm that an employee must have employer approval to take FFCRA leave intermittently. Intermittent leave is leave taken in separate blocks of time due to a single qualifying reason, with the employee reporting to work intermittently during an otherwise continuous period

leave. Think of it as an employee taking leave for 2 hours per day for 20 days rather that one single 40-hour week all at once. The DOL’s recent revisions make clear that in the context of the FFCRA, employees can take leave intermittently only with approval from the employer.

The revisions also clarify that only certain types of FFCRA leave are available on an intermittent basis. Basically, the DOL does not want employees with a higher risk of spreading the virus to be reporting to work periodically as they would on intermittent leave. As a result, employees who qualify for paid sick leave, i.e. they are entitled to leave because they are sick or quarantined or are caring for someone else under quarantine, may not take leave intermittently. But, when the qualifying reason is to care for his or her child because the school or child care is unable or closed due to COVID (i.e. expanded paid FMLA leave), these employees may always take leave intermittently. Importantly, if an employee is teleworking and not reporting to the worksite, that person may take leave intermittently for any of the qualifying reasons (even paid sick leave), so long as they have employer approval.

Leave notice must be provided as soon as practicable.

Lastly, the revisions clarify that employees must provide documentation supporting their need for FFCRA leave as soon as practicable. But what constitutes “as soon as practicable” depends on the qualifying reason for the leave. For employees qualifying for paid sick leave, the notice may not be required in advance, but instead only after the first workday (or portion thereof) for which an employee takes paid sick leave. For employees who qualify for the expanded FMLA leave, employees are required to provide advanced notice if the need for leave is foreseeable. The DOL provides the example of an employee who learns on Monday morning before work that his child’s school will close on Tuesday for COVID related reasons. Because the leave was foreseeable, i.e. the employee knew the morning before the closure of the need for leave, he must provide notice to the employer in advance in order to meet the statutory requirement that he provided notice “as soon as practicable. ” If on the other hand, the leave is not foreseeable because an employee does not learn until after reporting to work on Tuesday that the child’s school will close that same day because of COVID, this employee may take expanded FMLA leave without prior advanced notice, but must still notify the employer as soon as practicable of the need for leave.

Timing is Everything.

The new rules became effective September 16, 2020, and, just like the FFCRA, run through December 31, 2020. But employers are well-advised to monitor whether FFCRA leave benefits are extended into 2021 or beyond, which will likely depend on the trend of infections, the availability of the vaccine, and the results of the election. Stay tuned!