A lawsuit challenging the Department of Labor (DoL) FFCRA leave guidance was filed in April 2020 by the New York Attorney General. (New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020) The decision of the federal district court invalidated four sections of the DoL regulations. The invalidated regulations included:
- The persons covered as “health care providers” who could be excluded from the leave provisions of the Act,
- Regulations stating the employer must permit intermittent leave under the EPSLA or EFMLEA,
- Prior notice of leave provisions, and
- Availability of leave if the employer does not have work for the employee to do.
DoL recently issued a new temporary rule with explanations of some of the provisions (intermittent leave) and clarification/amendment of others (notice of leave), effective September 16- December 31, 2020. Unless extended through additional legislation, the leave provisions in FFCRA (EPSLA and EFMLEA) expire at the end of December.
Find the notice in the Federal Register here: https://preview.tinyurl.com/yysmuzlg.
DoL clarified and expanded upon its interpretation on intermittent leave. An ongoing question for public schools has been how to administer the use of EFMLEA leave for child care when the employee’s child(ren) are on a hybrid schedule, attending in person and remotely from week to week or day to day. Updated regulations clarify that EFMLEA child care leave for parents whose students are on hybrid programs is not considered intermittent leave.
The rationale: because school buildings are closed to students on days when students attend remotely, remote days are considered a qualifying reason for leave. In contrast, when the child goes to school in person, the school is open. When the school switches back to remote learning, it is a new qualifying reason for leave. This guidance is different from previously-published guidance and is a new interpretation. Intermittent leave was addressed at questions #20-22 of the Dol “FFCRA Questions and Answers”. It is assumed this Q & A will be revised after the effective date.
DoL’s new explanation of the rationale as published in the Federal Register, 85 FR 57677 :
“The employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50.
In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.
The employee may take leave due to a school closure until that qualifying reason ends (i.e., the school opened the next day), and then take leave again when a new qualifying reason arises (i.e., school closes again the day after that). Under the FFCRA, intermittent leave is not needed because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person.
This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.”
Teleworking employees: DoL clarified that an employee may take intermittent leave while teleworking for any of the FFCRA qualifying reasons if the employer permits it.
Notice and documentation of leave: The DoL also amended one regulation that required notice to the employer of the need for leave prior to taking the leave.
- EPSLA leave: notice of the need for leave cannot be required prior to the leave. The revision states that notice of leave after the first day should be given “as is practicable.”
- EFMLEA leave: if the need for the leave is foreseeable, notice should be given in advance. If not foreseeable, the employee must give notice “as is practicable.” Employees may be required to provide documentation including the employee’s name, dates for which leave is requested, qualifying reasons for the leave, and an oral or written statement the employee is unable to work.
What this means for your district:
Administering EPSLA and EFMLEA child care leave has been challenging. DoL’s interpretations and positions continue to evolve. These regulations clarify some of the questions we have been getting, although additional questions remain. Please consult with an EB attorney if you have specific questions about how the newly-effective regulations apply in specific situations.
The pandemic has resulted in the enactment of emergency federal legislation providing additional the amendments are part of the Families First Coronavirus Response Act (H.R. 6201), and the FMLA expansion portion is called the Emergency Family and Medical Leave Expansion Act. Additional provisions of the law that provide employer-paid sick leave are called the Emergency Paid Sick Leave Act.
These laws take effect fifteen days from the enactment of the law (March 18), which will be April 1st. Both of these provisions will be temporary, ending on December 31, 2020.
FMLA Leave Expansion
To be eligible for this type of FMLA leave, employees must have been employed only for thirty days (not the usual eligibility criteria of 1,250 hours in the preceding year). The thirty days mean on the payroll for the 30 calendar days immediately prior to when the leave would begin.
Reasons for Leave
1. If a child’s school or place of care is closed, or the
child care provider is not available, and the employee is unable to
work or telework because they must care for the minor
child, the employee may use leave.
Pay for leave after first ten days
The first ten days of this FMLA leave is unpaid, although the employee may elect to substitute vacation, sick, personal or medical leave for unpaid leave. They also may use the Emergency Paid Sick Leave Act described below. After that, the leave will be paid for up to twelve weeks.
After the first ten days, employees are to be paid at a rate of 2/3rds their regular rate of pay for the number of hours they normally work. The amount of pay for this sick leave is capped at not more than $200 per day, and continues up to a maximum of $12,000 (this is for the entire 12-week period, including the two weeks of leave which may be the emergency paid sick leave provided in the Act.
There is an averaging process provided in the law to determine the amount to be paid to an employee who works a varying number of hours.
Employers may require documentation in support of expanded family medical leave just as you would for other FMLA requests.
The expanded FMLA leave for child care does not require that employers permit the leave to be taken intermittently. However, if the employer agrees to do so, the leave may be taken intermittently.
Employers must maintain health insurance during the period of expanded FMLA leave for child care.
Right of restoration
Employers must restore the employee to an equivalent position unless the position has been eliminated or reduced due to economic reasons or other operating conditions that affect employment as a result of the public health emergency.
An “equivalent position” is one that provides equivalent benefits, pay, and other terms and conditions of employment. If the efforts of the employer to do so are unsuccessful, employers must contact them if such a position does become available for a period of one year.
Paid Sick Leave
Another part of the Families First Coronavirus Response Act is the Emergency Paid Sick Leave Act. This leave applies to school districts and, like the expanded FMLA provisions, it expires December 31, 2020.
Employers must immediately provide, as needed, eighty hours of paid sick leave to full time employees (regardless of the length of their employment) or an average of hours worked over a two-week period for part-time employees who meet the following criteria:
- Unable to work (or telework) due to an isolation or quarantine order related to COVID-19 (federal, state or local order);
- Has been ordered by a health care professional to self-quarantine due to concerns related to COVID-19;
- The employee is seeking medical diagnosis and is having symptoms of COVID-19;
- The employee is caring for an individual (law does not specify that it has to be a family member) subject to such an order
- The employee’s child’s school or place of care is closed or child care provider is unavailable (same reason as FMLA expansion), or
- The employee is experiencing any substantially similar condition as identified by the Secretary of Labor or Treasury.
For the first three conditions, hourly pay is the greater of the employee’s regular rate of pay, the federal minimum wage, or local/state minimum wage. This is subject to a maximum of $511/day, up to $5,110 for the entire paid emergency sick leave period.
For the conditions from 4-6 on the list, pay is capped at 2/3 of the greater of the amounts listed above. This is subject to a maximum of $200 per day, up to $2,000 over the two week period.
The leave is subject to a few conditions, including that:
- The employee may not be required to find another employee to cover the hours they are using for sick time.
- The employee may be required to return to work at the next scheduled shift after the need for sick leave ends.
- The leave does not carry over from one year to the next.
- The employer also may not require use of other paid leaves before using this emergency sick leave.
This leave is limited to two weeks for any combination of the reasons listed above. The leave is not retroactive (prior to April 1, the effective date) and the employee may still use the leave even if the employer gave the employee paid leave for similar reasons prior to April 1, 2020.
Employers must post a notice of the availability of this sick leave. This notice is available at:
Violation of the provisions of the emergency paid sick time would be a violation of the Fair Labor Standards Act for failure to provide minimum wage and subject to the penalties of the FLSA.
More changes and new provisions are possible as lawmakers and federal and state agencies respond to this situation. There are issues of interpretation with this new law that may be dealt with in additional legislation, future regulations, or a FAQ from the Wage and Hour Division.
This article will be updated to reflect changes in these particular provisions as needed.