DOL Issues Rule Implementing Emergency FMLA Provisions

The Secretary of Labor has issued temporary regulations to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), and emergency paid sick leave to assist working families facing public health emergencies arising out of Coronavirus Disease 2019 (COVID-19) global pandemic. This leave is created by a time-limited statutory authority established under the Families First Coronavirus Response Act, Public Law 116–127 (FFCRA), and is set to expire on December 31, 2020. The following provides an overview of the basic requirements of the newly enhanced FMLA and does not cover all other specifics in the regulation.

The new rule implements the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The EPSLA requires that certain employers provide two workweeks (up to 80 hours) of paid sick leave to eligible employees who need to take leave from work for specified reasons as a result of the COVID-19 pandemic. The EFMLEA requires that certain employers provide up to twelve weeks of expanded family and medical leave to eligible employees who need to take leave from work because the employee is caring for his or her son or daughter whose school or place of care is closed or childcare provider is unavailable due to COVID-19 related reasons.

The good news is that payments from employers to employees for such paid leave, as well as allocable costs related to the maintenance of health benefits during the period of the required leave, is to be reimbursed by the Department of the Treasury via tax credits, up to the statutory limits, as provided under the FFCRA.

In general, the EPSLA requires covered employers to provide eligible employees up to two weeks of paid sick leave at full pay, when the employee is encountering any of the following:

• Unable to work because the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
• Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
• Is experiencing COVID-19 symptoms and seeking a medical diagnosis.

The EFMLEA also provides up to two weeks of paid sick leave at partial pay, up to a specified cap, when an employee:

• Is unable to work because of a need to care for an individual subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
• Because of a need to care for the employee’s son or daughter whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons;
• Or because the employee is experiencing a substantially similar condition, as specified by the Secretary of Health and Human Services.

Employers with fewer than 50 employees can be exempt from providing paid sick leave for childcare purposes and expanded family and medical leave if they can show that complying with the requirements would jeopardize the viability of their business as a going concern.

Section 826.40(b)(1) of the rule explains that a small employer is exempt from the requirement to provide such leave when:

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

For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.

Further, Section 826.40(b)(2) of the rule explains that if a small employer decides to deny paid sick leave or expanded family and medical leave to an employee or employees whose child’s school or place of care is closed, or whose childcare provider is unavailable, the small employer must document the facts and circumstances that meet the criteria set forth in § 826.40(b)(1) to justify such a denial.

Employers claiming this exemption will need to demonstrate this burden, and to show that they are exempt. Small employers must document the facts and circumstances to demonstrate the burden experienced by the business if they have employees who are requesting paid sick leave or expanded family and medical leave. Although the employers are not required to send such material or documentation to the Department, this documentation must be retained for their own files.