Employment Law Alert: New U.S. DOL Rule on Emergency Paid Leave

On April 1, 2020, the U.S. Department of Labor enacted a new Temporary Rule that took effect immediately to implement the Emergency Paid Sick Leave Act and Emergency Family & Medical Leave Expansion Act.  Some of the more important clarifications made by the Temporary Rule are:

• An Apparently Narrow Possibility for Entitlement to Emergency Sick Leave Due to a Shelter Order:   On March 26, 2020, DOL issued guidance in the form of Questions & Answers stating that emergency paid sick leave does not apply to work site closures “pursuant to a Federal, State or local directive.”  (Questions & Answers #23-25, 27).  While this prior guidance has not changed, the Temporary Rule (and comments accompanying the rule) provide that an employee would be entitled to Emergency Sick Leave if the work site has not closed, the employer has “enough work for them,” but they cannot work due to the governmental order.  For a variety of reasons, we think there would be very few situations meeting these requirements.  Many jurisdictions have ordered nonessential businesses to close, and many others have been forced to close due to lack of business.  As to essential businesses, their employees would not qualify to the extent they are allowed to work.
  
• Lack of Work Disqualifier:  The Temporary Rule clarifies that “where the employer does not have work for the employee,” the employee is not eligible for Emergency Sick Leave even if the employee is also unable to work because of these otherwise qualifying reasons:  (i) the employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19; (ii) the employee is caring for an individual who is subject to such order, or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (iii) the employee is caring for a child whose school or place of care has been closed, or a child care provider is unavailable, for reasons related to COVID-19.  Likewise, the Temporary Rule provides that an employee is not eligible for Emergency FMLA Leave where the employer does not have work for the employee.
  
• Care For An “Individual”:   The Temporary Rule clarifies that the definition of an “individual” being cared for by the employee for qualifying reasons means “an Employee’s immediate family member, a person who regularly resides in the Employee’s home, or a similar person with whom the Employee has a relationship that creates an expectation that the Employee would care for the person if he or she were quarantined or self-quarantined. For this purpose, ‘individual’ does not include persons with whom the Employee has no personal relationship.”
  
• Use of Other Paid Time During Emergency FMLA Leave:  The Temporary Rule provides that the employee may elect, and the employer may require the employee, to use other forms of paid leave during (and concurrently with) Emergency FMLA Leave, but “only leave that would be available [to the employee for the same purpose] under the employer’s existing policies, such as personal leave or paid time off.”  This provision appears only to apply to the first 2 weeks of leave, and only to the extent the employee does not elect to use (or have remaining unused) Emergency Sick Leave for those 2 weeks.  The Temporary Rule provides that neither the employee nor the employer may require use of paid leave during the last 10 weeks of Emergency FMLA Leave because it is already a paid form of leave (although the employer and employee may mutually agree that the employee can use other forms of available paid leave toward truing up total pay to 100%).  Also, the Emergency Paid Sick Leave Act prohibits an employer from requiring employees to use other forms of paid leave (e.g., PTO, vacation, or other available sick leave) before using Emergency Sick Leave (which can overlap with the first 2 weeks of Emergency FMLA Leave), and the law does not appear to allow an employer to require use of Emergency Sick Leave.  The Temporary Rule provides that, if the employee elects or the employer requires the employee to use other paid time off during Emergency FMLA Leave, the employer must provide the employee with full pay for the days of leave, but the related tax credit is capped at $200 per day or $10,000 in the aggregate.
  
• Employee Documentation Requirements:  The Temporary Rule requires employees to provide documentation containing the following information prior to taking Emergency Sick Leave or Emergency FMLA Leave:  (1) Employee’s name; (2) Date(s) for which leave is requested; (3) Qualifying reason for the leave; and (4) Oral or written statement that the employee is unable to work because of the qualified reason for leave.  In addition for leave relating to a quarantine or isolation order, the employee must provide the name of the government entity that issued the order. For leave relating to a health care provider advising the employee to self-quarantine, the employee must also provide the name of the health care provider.  For leave relating to care of an individual, the employee must also provide the name of the government entity that issued the applicable quarantine or isolation order, or the name of the health care provider who advised the individual to self-quarantine.  For leave relating to care of a child, the employee must also provide:  (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that has closed or become unavailable; and (3) a representation that no other suitable person will be caring for the child during the period for which the employee takes Emergency Sick Leave or Emergency FMLA Leave.  The employer may also request an employee to provide such additional material as needed for the employer to support a request for related tax credits. The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.  The employer may not require the employee to provide documentation beyond the above minimum requirements.
  
• Recordkeeping:  Employers must retain for at least four years:  (a) the above-referenced mandatory employee documentation, regardless of whether an employee’s leave request is granted or denied; (b) to claim the small business exemption, documentation of the determination by an authorized officer of the company that it qualifies for the exemption; and, (c) an array of documentation to claim tax credits (please consult with your tax adviser on this). 
  
• Layoffs:  The Temporary Rule provides that employees taking leave are “not protected from employment actions, such as layoffs, that would have affected the employee regardless of whether he or she took leave.  In order to deny restoration to employment, an employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested….”

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