Founder and Managing Partner
This document is created from Frequently Asked Questions we receive from our clients concerning the application of the Families First Coronavirus Response Act (FFCRA) that are not addressed in our original analysis of the FFCRA. It is not the sole input we have on the FFCRA and its practical effect on you and your business. But in the interest of time and due to the onslaught of questions and triage legal advice we are providing into the wee hours of the night, we are doing our best to provide you with information on only the most commonly asked questions that aren't addressed in our other publications. This FAQ was originally posted on March 21, 2020 and will be continually updated as more information comes in from the federal government and agencies. That new information will be updated with the date of the updated information.
1. Does the EPSLA apply to sick pay given before April 2?
No. Paid sick leave under EPSLA is separate and in addition to any other legally mandated or voluntary paid sick leave programs that were in existence prior to the April 1, 2020 effective date of the EPSLA. It was initially estimated that the EPSLA and EFMLA may take effect on April 2nd, but the Department of Labor’s new guidelines released on March 25, 2020 has clarified that the EPSLA and EFMLA’s paid leave provisions apply only to leave taken between April 1, 2020 and December 31, 2020.
2. If not, what are the options employers can give their employees facing extended time off due to local shelter in place orders prior to April 2?
The question above was based on the initial estimate that the EPSLA and EFMLA would take effect April 2, 2020. The Department of Labor’s new guidelines released on March 25, 2020 has clarified that the EPSLA and EFMLA’s paid leave provisions apply to leave taken between April 1, 2020 and December 31, 2020. Otherwise, the response below remains the same.
In California, employers can provide employees with the option of using accrued PTO/vacation benefits, and the employees may also apply for unemployment benefits. Other sick leave benefits (such as those offered by the employer and/or mandated under state or local law) may be available under certain related circumstances, such as absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member. Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities. There may be additional situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care, for example, where there has been exposure to COVID-19 or where the worker has traveled to a high risk area. Although the general tenor of these new pandemic-related obligations is to be permissive and flexible to employee needs, employers should nevertheless be careful about granting paid sick leave for situations beyond those contemplated or outlined in the sick leave regulations because granting sick leave for any purpose can transmute it into general PTO-type leave, which must be cashed out to the employee at the time of termination. Employers should also remember that employees cannot be forced to use sick leave or vacation/PTO time before using EPSLA/EFMLA; it is their choice.
3. If I pay emergency paid sick leave before April 2, can I get a tax credit for it before April 2?
No. The question above was based on the initial estimate that the EPSLA and EFMLA would take effect April 2, 2020. The Department of Labor’s new guidelines released on March 25, 2020 has clarified that the EPSLA and EFMLA’s paid leave provisions apply only to leave taken between April 1, 2020 and December 31, 2020.
4. If I terminate employees sufficient to bring my company’s employee count below the 50 employee mark before April 2, can I avoid paying EPSLA/EFMLA?
Possibly. The question above was based on the initial estimate that the EPSLA and EFMLA would take effect April 2, 2020. The Department of Labor’s new guidelines released on March 25, 2020 has clarified that the EPSLA and EFMLA’s paid leave provisions apply only to leave taken between April 1, 2020 and December 31, 2020. These new guidelines also support our initial position in this FAQ that the original FMLA headcount calculation method does not apply to these Acts. Instead, the applicable employee count for these Acts is based on the total number of full-time and part-time employees (including employees on leave, temporary employees, jointly-employed employees and day laborers supplied by a temporary agency) that were employed by the employer at the time at which the leave is to be taken.
The DOL’s March 27, 2020 updated guidelines clarified that an employer with fewer than 50 employees is exempt from providing EPSLA and EFMLA leave under the childcare-related reasons when doing so would jeopardize the viability of the business as a going concern. An employer may claim this exemption if an authorized officer of the business has determined that: 1) the provision of paid sick leave or expanded family and medical leave would result in the 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.
Ultimately, termination decisions must each be evaluated on the specific facts and circumstances that apply and employers should consult with employment counsel prior to making any such decisions that could have wide-spread effect on other employees or are otherwise strategic or potentially risky in nature.
5. If I own multiple dealerships are the employees of each dealership aggregated to determine whether my organization’s employee count is at or above 500? Does the 75 mile radius calculation of the original FMLA apply?
As to the EFMLA, two or more entities are separate employers unless they meet the “integrated employer test” under the Family and Medical Leave Act of 1993 (FMLA). If multiple entities are an integrated employer under this test, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of EFMLA. However, as the integrated employer test was referenced in the DOL’s March 25, 2020 guidelines only as to the EFMLA, it appears that the DOL intended for this test to not apply to application of the EPSLA, although this is still not entirely clear. It is clear, however, that the original FMLA’s requirement that an eligible employee work at a worksite with over 50 employees within 75 miles does not apply to the EFMLA or EPSLA as the EFMLA specifically removes those provisions and the Acts instead provide that an employee need only be employed for 30 days prior to the start of the leave to be eligible to use such leave for a qualifying reason.
6. Are local and state stay at home/shelter in place orders sufficient to qualify an employee for EPSLA based on a “quarantine or isolation order related to COVID-19”?
Yes, but only under very specific circumstances. Temporary regulations released by the DOL on 4/1/2020 clarify that quarantine or isolation orders under the FFCRA include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility (like the California state-wide order in effect as of mid-March). But, the mere existence of a shelter in place or stay at home order applicable to the employee is not the end of the analysis to determine if they are entitled to EPSL. This is because the DOL further clarified that EPSL is available to an employee only if the employer is open and operational, and has work for the employee to do but it is the employee who is unable to work due to a “quarantine or isolation order.”
Accordingly, if an employer is closed because it is a non-essential business and ordered to close under the state or local order, or the employer is an essential business (and remains open), but experiences a slowdown in customers such that there is no work for the employee, the affected employee would not be entitled to EPSL absent some other qualifying reason. On the other hand, if the employee is scheduled to work or can telework, but experiences some circumstance related to the stay at home order preventing her from working, she can avail herself of the leave. The example provided is of an employee who is permitted to telework and has work to do but is unable to telework in the event of a power outage or similar extenuating circumstance and would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.
7. What if the employee is one who works in the service department (i.e., an essential business operation typically exempted from the stay at home orders) but wishes to go on leave out of a fear of Covid-19 exposure – are they allowed to use EPSL?
Typically no, unless advised by a doctor to self-quarantine. Mere concern or fear about exposure to the virus is not a qualifying reason for EPSL, however, there may be other reasons for which the employee should not come to work, such as if they recently traveled to an area with an outbreak. In that case, it is unclear whether the employee could be eligible for EPSL, but employers can still direct the employee not to come to work out of safety concerns for the rest of the workforce. Although an employee’s fear or unease about exposure to Covid-19 is not a qualifying reason for receipt of EPSL benefits, employers should still take such fears seriously and consider whether to allow the employee to take off work through unpaid time off and/or use of accrued PTO or vacation time.
8. What if that same employee volunteers that s/he has an underlying medical condition or age putting them in a high-risk category?
Again, it is unclear whether this would technically fall within the EPSLA’s categories but it seems to match the spirit of the law and even if paid leave is not available, employers should allow the employee to stay home at least on an unpaid basis. The employer can also ask the employee to discuss the specifics with their medical provider and see if they recommend self-quarantine, which would permit use of EPSLA leave.
9. Does an employee’s use of paid sick leave under the EPSLA apply against other accrued paid sick leave that the employee has available under the employer’s policy or under state /local law?
No. Paid sick leave under the EPSLA is in addition to any other paid sick leave benefits that the employee may otherwise have. The employer may not require the employee to use other sick leave or other paid leave benefits before using sick leave under the EPSLA.
10. If an employee is off work for qualifying reasons covered under EPSLA and/or EFMLA, is the employer prevented from laying off the employee?
Employers are expressly prohibited from discharging, disciplining, or in any other manner discriminating against any employee who takes leave in accordance with these Acts or having filed any complaint or instituted or caused to be instituted any proceeding under or related to these Acts. However, if the employer can prove that the employee would have been laid off regardless of whether they took time off under these Acts (for example, if the employee’s entire work unit is being laid off for legitimate business reasons or other valid business-related reason unrelated to the employee’s use of EPSLA or EFMLA), the employer would not be in violation. However, the employer should carefully review any such action with legal counsel prior to moving forward with it.
11. Are employers obligated to pay out vacation/PTO to employees who are furloughed for longer than a pay period?
Many employers are considering temporarily laying off all or part of their workforce. Furloughs are typically schedule suspensions or temporary layoffs due to economic or business pressures for the employer, where the employer expects to bring the employees back to work, often with a specific return date. Presently, the Department of Labor Standards and Enforcement (DLSE) takes the position that an indefinite furlough needs to be treated like a termination, such that the employer is required to pay out any accrued PTO/vacation, and that a furlough lasting more than the current pay period (even with a return date) also requires this pay out. However, this position is grounded in an old Labor Commissioner opinion letter that could not contemplate the current crisis and the potentially dire financial impact it could have on some employers. As such, we and others in the industry have entreated the DLSE to relax this standard given the current circumstances. We will provide any updates on how the DLSE responds.
12. If employees are furloughed during the timeframe applicable to the EPSLA/EFMLA, are those employees entitled to pay under the new leave law?
(UPDATED 03/27/2020 based on DOL Guidance)
No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/local-help.aspx.
13. If an employee can work from home, are they still eligible for leave under these Acts?
Not if the employer allows the employee the means of working remotely. The provisions of the EPSLA and EFMLA both indicate that to qualify for the paid leave, the employee must be unable to work, or telework, due to a qualifying reason. But the employer must provide the employee with the means of working remotely, including covering the cost of expenses the employee incurs as a result, and equipment needed for such arrangement. Employers who allow non-exempt employees to work remotely must also contend with additional wage/hour issues, such as tracking time spent and ensuring that the employee observes meal and rest break obligations. Teleworking arrangements may provide a workable solution to the challenges of the Coronavirus situation, but employers must consider the variety of compliance issues such arrangements can create and should consult with counsel.
14. If I am or become unable to telework, am I entitled to paid sick leave or expanded family and medical leave?
If your employer permits teleworking—for example, allows you to perform certain tasks or work a certain number of hours from home or at a location other than your normal workplace—and you are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave.
Similarly, if you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.
15. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?
No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
16. If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?
If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
17. If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work?
No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.
You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced (see Question 5).https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
18. Can the employer require the employee to supplement EPSLA/EFMLA pay with accrued paid leave that the employee otherwise has pursuant to the employer’s policy?
Such arrangement is allowable if both the employer and the employee agree to it. Note that any other paid leave that is used to supplement EPSLA/EFMLA pay should not bring the employee’s total earnings above their normal level of pay. Also, this supplemental pay does not qualify for the federal tax credit.
19. Is an employee ineligible for EPSLA if the person they are caring for due to a COVID-19 reason is not a family member?
Not necessarily. The individual being cared for must be an immediate family member, roommate, 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 self-quarantined or was quarantined. As such, paid sick leave may not be taken to care for someone with whom the employee has no personal relationship, but it does not have to be a family member or relative. Additionally, the individual being cared for must: (a) be subject to a Federal, State, or local quarantine or isolation order; or (b) have been advised by a health care provider to self-quarantine based on a belief that he or she has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.
20. What documentation can the employer require from the employee to support the need for leave under the EPSLA or EFMLA?
According to the DOL’s temporary regulations issued 4/1/2020, an employee must provide his or her employer documentation a signed statement containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. An employee must provide additional documentation as applicable, depending on the reason for the leave, such as the name of the government entity that issued the quarantine or isolation order to which the individual is subject or the name of the health care provider who advised the individual to self-quarantine. In the case of a need to care for a son or daughter due to lack of school or childcare, the employee must provide the name of the child being cared for; the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and a statement representing that no other suitable person is available to care for the child during the period of requested leave.
21. What documentation must the employer provide to the employee who is taking paid leave under the FFCRA?
The DOL’s temporary regulations issued 4/1/2020 confirm that it did not adopt specific employer notice requirements, unlike those that are required in the FMLA regulations. Accordingly, the FFCRA regulations do not require employers to respond to employees who request or use EFMLEA leave with notices of eligibility, rights and responsibilities, or written designations that leave use counts against employees’ FMLA leave allowances.