United States: DOL Officially Releases Regulations On Paid Leave, Adding Some New Wrinkles

Late Wednesday afternoon, just as the leave provisions of EFMLEA and EPSLA were becoming effective to employers, the United States Department of Labor issued regulations addressing a host of issues.  Some of the regulations mirrored the DOL guidance released last week, but other portions were new or further clarifications.

While no alert can detail all of the changes that the regulations make to the implementation of the law, there are several items that employers need to become aware of immediately, particularly those that are starting to apply it this week.  This Alert presumes some familiarity with our prior alerts on the EFMLEA and EPSLA provisions; for a prior discussion of these laws, see our posts on the Coronavirus Resource page here.

Is an employee entitled to leave where an employer does not have work for an employee or is shut down?

• The new rule clarifies that an employee may not take paid leave under the EFMLEA or EPSLA if the employer does not have work for the employee (whether the employer is subject to a shutdown order due to COVID-19, lacks work due to COVID-19, or for any other reason).

What does it mean to be able to telework -- and thus not eligible for leave?

• Under the same rule, an employee is able to telework if all of the following three conditions are met: (a) the employer has work for the employee; (b) the employer permits the employee to work remotely from the employee's location; and (c) there are no extenuating circumstances (such as serious COVID-19 symptoms) that prevent the employee from performing that work. 

strong>What clarifications are there to the six reasons that paid sick leave is available to employees under the EPLSA?

The DOL's regulations go to great length to give much greater definition to the reasons why an employee can take paid leave.

1) Subject to a Quarantine or Isolation Order

The regulations clarify that a "federal, state or local isolation order" that might qualify as a reason for a leave includes a broad range of governmental orders, including orders to shelter in place or stay at home.  However, an employee may only take the leave when the employee would otherwise be able to perform the work or telework permitted by the employer if the order was not in place.   

• This reason also includes when governments have advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them. 

 Note that if an employer's business is shutdown as a result of an order, it is not required to provide paid leave to employees, because the employer is the subject of the order to shut down, NOT the employee.

2) Advised by a health care provider to self-quarantine

When a health care provider advises the employee to self-quarantine on a belief that a) the employee has COVID-19; b) the employee may have COVID-19; or c) the employee is particularly vulnerable to COVID-19; and the employee is unable to work or telework because of following such advice, the employee may seek paid leave, according to the regulations.   

An important takeaway is that if an employee has an underlying medical condition that makes him or her "particularly vulnerable" to COVID-19 in the workplace, the employee may be able to use paid sick leave, even though they do not have the virus itself.  Employers should review such requests on a case-by-case basis. 

3) Experiencing Symptoms and Seeking Medical Diagnosis for COVID-19

The regulations also clarify that an employee who experiences the symptoms of fever, dry cough, shortness of breath, or any other COVID-19 symptoms identified by the CDC, and who is affirmatively taking steps to obtain a medical diagnosis, may be eligible for paid leave.  An employee cannot merely claim that he or she has symptoms; seeking medical diagnosis or treatment is required. 

4) Caring for an Individual Who Has Been Quarantined or Been Advised to Self-Quarantine.

The regulations define who the "individual" is that an employee can care for in order to qualify for paid leave.  "Individual" means either an immediate family member, a person who regularly resides in the employee's home, or a person that, if the tables were turned, would be caring for the employee.  The employee must have a personal relationship with the "individual".

5) Caring for a Son or Daughter Because of School Closures

The FFCRA provides that an employee may take leave to care for a child whose school or "place of care" is closed, or where the employee's "child care provider" is unavailable due to COVID-19 related reasons.  The regulations define a "place of care" broadly to include day care facilities, preschools, homes, summer camps, and summer enrichment programs.  The regulations also generally require a "child care provider" to be licensed, regulated, or registered.  However, a "child care provider" can also include a family member or friend (even a neighbor) as long as that person "regularly cares" for the child, with or without compensation.  

NOTE:  The DOL clarified that it is now treating the definition in the EFMLEA and the EPLSA the same with respect to "son or daughter",  which will include children under 18 years of age, and children age 18 or older who are incapable of self-care because of a mental or physical disability.

6)  Experiencing Any Other Substantially Similar Condition That May Arise As Designated by the Secretary of Health and Human Services

The regulations do not provide any further guidance on this reason for leave under either the EFMLEA or the EPLSA. 

Can the employee elect to use, or can the employer require, that an employee use PTO concurrently with the leave under the EFMLEA? 

• Because the EFMLEA amends the FMLA, the regulations clarify that the same rules apply under the FMLA for the use of an employee's accrued PTO (or equivalent such as sick or vacation leave) during the first two weeks of unpaid time. In other words, an employee could elect to use accrued PTO during the first two weeks of unpaid EFMLEA leave. Similarly, the employer could require the employee to use accrued PTO to supplement the unpaid portion of EFMLEA leave. However, because the remaining ten weeks are paid (albeit at a reduced rate), the FMLA rules for substitution of accrued paid leave do not apply. For the paid portion of EFMLEA leave, an employee may elect to have accrued paid leave supplement the 2/3 pay provision in order to receive full pay only if the employer agrees. Likewise, an employer cannot require an employee to use accrued PTO to supplement the paid portion of EFMLEA leave. There must be agreement to supplement between the employee and employer.

Can employees take intermittent leave?

• The regulations mirror the previous guidance.  If the employee is working and is taking leave to care for a child, the regulations say "yes."  Otherwise, no.
• If the employee is teleworking, employees may take EFMLA or EPSLA intermittently for any of the six allowed reasons, and may do so in less than full day increments if agreed to by the employer.   

Can an employee take EFMLEA leave first and then take EPSLA?

• The regulations finally answer this question: Yes. For example, an employee is not required to use EPSLA during the first two weeks of the unpaid portion of the EFMLEA. 

What documentation can an employer require?

• All employees seeking paid leave must provide the following:
  • Employee's name
  • Date(s) for which leave is requested
  • Qualifying reason for leave, and
  • A statement that the employee is unable to work because of the qualified reason for leave. This statement may be oral or written.
• In addition, employees must provide the following depending on the reason for taking paid leave:
  • If an employee is taking paid sick leave leave due to a quarantine or isolation order, the employee must identify the governmental entity that issued the order.
  • If an employee is taking paid sick leave leave because a health care provider advised him/her to self-quarantine, the employee must identify the health care provider.
  • If an employee is taking paid sick leave or EFMLEA leave to care for a child whose school or place of care is closed, the employee must identify the name of the child being cared for, the name of the school or childcare provider that is closed or unavailable, and represent that no one else will be taking care of the child. 

What records must the employer keep?

• Employers must retain all documentation for four years. If an employee provides oral statements, the employer must document and maintain those statements as well.

Is the employee allowed 80 more hours of EPSLA paid sick leave if he or she changes employers?

• The regulations say no, a person is limited to a total of 80 hours of leave under EPSLA for 2020.  An employee who has taken all 80 hours and then changes employers is not entitled to additional leave under EPSLA from the new employer. However, if the employee has only used a portion before changing jobs, then the employee can seek the remaining EPLSA from a new employer.  Thus, before granting new employees paid leave, employers should ask whether the individual has taken any leave time previously.  The regulations do not address what should happen to EFMLEA time if the employee changes employers in 2020.    

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.