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The Families First Coronavirus Response Act (FFCRA) and the Emergency FMLA (EFMLA) and Emergency Paid Sick Leave (EPSL) provisions, which were in FFCRA, went into effect on April 1 – approximately two weeks ago. Since April 1, both the Department of Labor (DOL) and the Internal Revenue Service (IRS) have issued additional guidance and interpretive regulations which attempted to give some clarity to both the EFMLA and EPSL. The final rules from the DOL were issued just last week. After reviewing all of this guidance and “living” with the FFCRA for about two weeks, the within article provides additional guidance on the new provisions.
- Documentation – What Do Employers Need? Employers are required to gather documentation so they can support their application for the tax credits, which will fund the EPSL and the FMLA. In addition, employers are required to retain the documentation for leave. Below is a shortlist of the information an employee must provide the employer prior to taking leave under the EPSLA or the EFMLEA:
- employee’s name;
- date(s) for which leave is requested;
- qualifying reason for the leave; and
- an oral or written statement that the employee is unable to work because of the qualified reason for the leave.
An employee must also provide the employer with information based on the qualified reason for the leave. For example, when requesting EPSLA leave for reasons related to a quarantine or isolation order for either the employee or an individual the employee needs to care for, the employee must provide the name of the government entity that issued the quarantine or isolation order, and when requesting EPSLA leave for reasons related to a health care provider who advised employee or individual employees needs to care for to self-quarantine, the employee must provide the name of the health care provider. For both EPSL and EFMLA to care for a child whose school or place of care is closed, or whose child care provider is unavailable, the employee must provide the name of the employee’s son or daughter, the name of the school, place of care, or child care provider that has closed or become unavailable, and a representation that no other suitable person will be caring for the employee’s son or daughter for the period of leave.
Unfortunately, the regulations are unclear as to whether or not additional documentation can be required. The regulations do allow the employer to gather additional information to support a request for tax credits pursuant to the FFCRA but are unclear as to whether or not the employer can demand doctor’s notes and other similar forms.
- Subject to Government Order. The first qualifying reason for an employee to be able to take EPSL is if the “[e]mployee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.” The final rule clarifies that a “quarantine or isolation order” broadly includes a range of governmental orders for “quarantine, isolation, containment, shelter-in-place, or stay-at-home.” However, the Order must be the cause of the inability to work. In Ohio, if you are operating as an Essential Business, the Stay At Home Order, issued by the Ohio Department of Health on March 22, is not the cause of any employee being unable to work. If Ohio’s Stay at Home Order is ever expanded to include people over 60 or a vulnerable population segment, for example, this may change but, as of now, Ohio’s order does not create a qualifying reason for EPSL.
- Advised to Quarantine by Healthcare Provider. The second qualifying reason for an employee to be able to take EPSL is if the “employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19.” The regulations explain that a health care provider must advise the employee to self-quarantine because the employee: (1) has COVID-19, (2) may have COVID-19, or (3) is particularly vulnerable to COVID-19. The employer only needs to provide this leave if the self-quarantine is the cause for the inability to work.
- Experiencing Symptoms AND Seeking Diagnosis. The third qualifying reason for an employee to be able to take EPSL is if the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis from a health care provider. So, an employee who has COVID-19 symptoms, including fever, dry cough, shortness of breath, or other symptoms, and is seeking a medical diagnosis may be entitled to leave. The employee must show that he or she is taking the steps necessary to make an appointment, attend an appointment, or wait for a medical diagnosis.
- Caring for an Individual. The fourth qualifying reason for an employee to be able to take EPSL is if the employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or advised by a health care provider to self-quarantine due to concerns related to COVID-19. The DOL did provide guidance as to whom an “individual” could be and it is much narrower than many expected it to be and clarified that the employee must have some personal relationship with the “individual” the employee needs to care for under this qualifying reason. The “individual” must be an immediate family member, a person who regularly resides with the employee, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person.
- School or Place of Care Unavailability. A fifth qualifying reason for an employee to be able to take EPSL and the sole reason for an employee to take EFMLA is if the employee is caring for the employee’s son or daughter whose school or place of care has been closed for a period of time, whether by order of a state or local official or authority or at the decision of the individual school or place of care, or the child care provider of such son or daughter is unavailable for reasons related to COVID-19. The regulations are consistent with the DOL guidance defining “son or daughter.” The FFCRA adopted the FMLA definition of “son or daughter” which includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.
- What about High School Kids? As for children over 14, prior to the final regulations, the IRS issued guidance stating that an employee requesting leave to care for a child over the age of 14 for a school/place of care closure must certify that “special circumstances” exist requiring the care of the child. This is not perfect but it does allow additional questioning of employees who are applying for EFMLA or EPSL to care for high school-aged children.
- Can’t Her Husband Watch the Kids? The employee must be unable to work (or telework) due to the need to care for, and provide the actual care of, his or her son or daughter. There must also be no other suitable person (such as a co-parent, co-guardian, or usual child care provider) who is available to care for the employee’s son or daughter during the period of leave. Again, this is not perfect but allows the employer to ask additional questions such as whether or not another parent is available, laid off, also taking EMFLA, before granting the leave.
- Even in the Summer? The school was Going to be Closed Anyway. In recognition that pandemic precautions may extend into summer, a “place of care” is defined broadly to include daycare facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs. Therefore, the employer may need to deal with and administer EFMLA and school-closure-related EPSL even during the months of June, July, and August.
If you have any questions, please contact Attorney Michael J. Bogdan (mbogdan@www.kwgd.com) at 330-497-0700 or any other KWGD Labor and Employment attorney.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.