United States: DOL Clarified The Federal Family First Coronavirus Response Act

A recent federal court decision struck down several provisions of the U.S. Department of Labor's rules regarding the  Family First Coronavirus Response Act. Congress passed the FFCRA in March to provide paid sick leave benefits for employees of private businesses with less than 500 employees and certain public entities as part of the COVID-19 stimulus package. An "employer" for this purpose, could include a joint employer and integrated employers, but exclude independent contractors. DOL had also added an exemption for small business employers.

In response, the DOL implemented the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act by issuing a temporary rulemaking on March 18 (with a Dec. 31 sunset). The rule resulted in numerous sets of questions and answers, updates and clarifications, and a federal lawsuit by the State of New York in April that challenged its constitutionality.  In August, the U.S. District Court for the Southern District of New York issued a decision that rejected four key provisions of DOL's temporary rule implementing the Act. Specifically, the court found that:

• The "work availability" requirement — prohibiting employees from taking leave if an employer "does not have work" — was invalid,
• The definition of "health care provider" was too broad,
• The employer consent was not needed for intermittent leave requests and
• The need for medical certification/documentation prior to taking leave was unreasonable.

No other aspect of the FFCRA was changed in State of New York v. U.S. Department of Labor. In its request for relief from the FFCRA, New York did not seek an injunction or a stay of the Rule. The court, similarly, did not rule on or discuss the applicability of the decision to non-New York employers. The legal impact of the decision on employers nationwide remains unclear.  

DOL issued a response to the decision on Sept. 11 that reaffirmed the Rule and rejected the court's analysis on three of the four key provisions. The "Q's and A's" were updated and, a week later, on Sept. 16, the agency issued a written text change:

1. Affirming the FFCRA paid sick leave could only be taken if the employee has work from which to take leave ("work availability"),
2. Affirming that intermittent FFCRA paid sick leave required employer approval, 
3. Revised the definition of "health care provider" (reversing its initial position to adopt a new standard and return to the former FLMA definition) and
4. Affirming that the required medical certification for employees seeking to use FFCRA was necessary and needed to be provided as soon as possible but not necessarily prior to taking leave. 

DOL's prompt guidance reaffirming FFCRA settled any speculation created by the otherwise silent New York court about the scope of its decision and how covered employers must proceed.

California COVID-19 Supplemental Paid Sick Leave
California amended Labor Code section 248.1 on Sept. 20 to fill the gap on paid sick leave benefits for larger California employers who were exempt from the FFCRA. It also expanded coverage to emergency responders and certain categories of health care providers who were exempt, and therefore denied, coverage for paid sick leave by the FFCRA. The California COVID-19 Supplemental Paid Sick Leave took effect immediately and required compliance on Sept. 19.

The new statute requires California employers to provide up to 80 hours of COVID-19 paid sick leave to "covered workers." California employers include businesses with 500 or more employees nationwide, public or private. Covered workers include food-sector employees, employees who work for health care providers and emergency responders excluded from the FFCRA. They can receive 80 hours of paid sick leave if they are unable to work because:

1. The worker is subject to a federal, state or local quarantine or isolation order related to COVID-19,
2. The worker is advised by a health care provider to self-quarantine or self-isolate due to COVID-19-related concerns or
3. The worker is prohibited from working by the worker's hiring entity due to health concerns related to the potential transmission of COVID-19.

Food-sector employees are defined as those who work for an employer with 500 or more employees across the nation, perform work in a food-related industry or in the retail food supply chain (including pick-up, delivery, retail, preparation), and must leave their home to perform this work. However, these individuals do not have to be classified as "employees" to be covered. For example, grocery store workers, food pick-up and food delivery workers are all covered food-sector employees.

Health care providers and emergency responders include those who work for private or public entities that employ health care providers or emergency workers and exclude those employees from the FFCRA who must leave their home to perform this work. Employers who already provide these workers with a supplemental paid benefit for COVID-19-related reasons may be able to count those hours toward the total CPSL required hours. Further, employers who allow workers to take COVID-19 leave may retroactively provide supplemental paid leave to meet the CPSL pay and apply those hours.

Tax credits for employers of health care providers and emergency responders are not available under the new CPSL.

The amount of paid sick leave available under CPSL:

The CPSL includes restrictive language regarding pay scales, recordkeeping requirements and notice to employees. More importantly, it imposes a short time for employers to come into compliance. It is important to consult with employment counsel on how the statute applies to your business or agency.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.