Employment Law Alert: Further New Guidance on Federal Emergency Sick Leave & FMLA

The U.S. Department of Labor has continued to provide new guidance regarding the Emergency Paid Sick Leave Act and Emergency Family & Medical Leave Expansion Act, including additions to published Questions & Answers.  Important updates include:

• Mandatory Employer Notice:  The DOL has published the mandatory notice that employers must post (in a conspicuous place) by April 1, 2020 regarding Emergency Paid Sick Leave and Emergency FMLA Leave, and special guidance regarding the notice.  The special guidance provides that employers may satisfy the posting requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. 
• Emergency Sick Leave Does Not Apply to Business Closures Due to Governmental Directives:  Since the federal Emergency Paid Sick Leave Act was signed on March 18, 2020, employers have sought guidance on whether Emergency Paid Sick Leave applied to an employee’s inability to work because of state and/or local public health orders to shelter at home or in place.  DOL guidance now indicates that the answer is no.  Questions & Answers Numbers 23-25, and 27 state that emergency paid sick leave does not apply to work site closures “pursuant to a Federal, State or local directive.”  As a result, the intended federal safety net for employees unable to work due to such local directives appears to be unemployment compensation (and not federal Emergency Paid Sick Leave).  By contrast, employees may be entitled to use state/local mandated paid sick leave for inability to work due to a shelter order (depending on the specific terms of the state or local paid sick leave law). 
• Employee Leave Documentation:   DOL Questions & Answers Numbers 15-16 state that employers “must require” appropriate documentation from employees to support their request for Emergency Paid Sick Leave, and Emergency FMLA Leave, including:  employee name, qualifying reason for leave, statement that the employee is unable to work (or telework) for that reason; dates of requested leave, and documentation of the reason for leave.  Examples of documentation of the reason for leave include (as applicable) a quarantine or isolation order, name of the health care provider advising the employee to self-quarantine, or an e-mail or web-site-posted notice of school or child care closure.  Employers should expect to be required to produce such documentation if audited concerning the tax credits provided for such leaves.  We recommend that employers develop leave request forms to support these documentation requirements. 
• Intermittent Leave:  DOL guidance provides that Emergency Paid Sick Leave can be used intermittently for remote work only if the employer agrees, and that as to work at the employer’s work site, leave must be taken in full-day increments until the qualifying condition ends (also implying that intermittent leave is allowed only if the employer agrees).  Likewise, DOL guidance provides that with respect to Emergency FMLA leave, intermittent leave while the employee is working at the employer’s work site is allowed only if the employer agrees.   (Questions & Answers 20-22) 
• Small Business Exemption:  DOL guidance now clarifies the requirements of the small business (fewer than 50 employees) exemption for Emergency Paid Sick Leave, and Emergency FMLA Leave.  Importantly, for both leave laws, the exemption only applies to use of leave to care for a child due to COVID-19 related school closure, or child provider unavailability.  To claim the exemption, an authorized officer of the small business must determine that: (1) The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; (2) The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or (3) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity. (Questions & Answers 58-59.) Given the significant risk inherent to denying Emergency Paid Sick Leave, and/or Emergency FMLA Leave, before claiming the exemption, we recommend that employers review with their legal counsel whether they have sufficient grounds.

• Correction to Our March 25, 2020 Alert:  We also want to note here a correction to our March 25, 2020 Employment Law Alert.  The alert indicated that Emergency FMLA Leave was to be paid at the regular rate, when emphasizing that overtime premium rates do not apply to overtime hours under Emergency FMLA.  The alert should have stated that Emergency FMLA Leave pay must be at least two thirds of the regular rates (and is subject to a cap of no more than $200 per day and $10,000 in the aggregate).

For more comprehensive information concerning the federal Emergency Paid Sick Leave Act, and the Emergency FMLA Leave Expansion Act, you can watch our March 27, 2020 on-demand webinar, and read our comprehensive article on the laws.