Federal law: New FFCRA updates
General clarifications issued September 11, 2020
On August 3, 2020, the U.S. District Court for the Southern District of New York ruled that parts of the Families First Coronavirus Response Act (FFCRA) regulations pertaining to paid leave were invalid. In light of this ruling, the U.S. Department of Labor (DOL) issued revisions to the regulations that clarify the provisions at issue.
These revisions do the following:
- Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them. Under this revision, for the employee to be eligible for paid leave under each of the qualifying reasons, the employer must have work for the employee to perform, but the employee cannot work due to a qualifying reason.
- Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
- Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care. This definition narrows the exemption from employer obligations to provide healthcare provider employees with paid leave under the FFCRA.
- Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable, which in most cases will be when notice of the need to take the leave is provided under these same regulations.
- Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers. Specifically, advance notice of expanded family and medical leave is required as soon as practicable; if the need for leave is foreseeable, that will generally mean providing notice before taking leave, consistent with obligations to provide documentation supporting the leave request.
Per the DOL, “As the economy continues to rebound, more businesses return to full capacity, and schools reopen, the need for clarity regarding the Families First Coronavirus Response Act paid leave provisions may be greater than ever,” said Wage and Hour Administrator Cheryl Stanton. “Today’s updates respond to this evolving situation and address some of the challenges the American workforce faces. Our continuing robust response to this pandemic balances support for workers and employers alike, and remains our priority.”
These revisions to the regulations will be officially published on September 16, 2020.
Clarifications issued August 27, 2020 related to school closures and distance learning
In anticipation of return to school issues that are bound to arise with so many schools currently implementing distance learning, on August 27, 2020, the DOL released new FAQs clarifying provisions in the FFCRA related to childcare issues. The FFCRA provides that employees may receive paid leave if they need to miss work in order to care for a child whose school or place of care is closed, or childcare provider is unavailable, for Coronavirus reasons. The clarifications provided by these new FAQs are as follows:
- In a “hybrid” learning situation, where the school provides in-person classes some days and remote learning on other days, the DOL confirmed that paid leave under the FFCRA is available on days when the child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee needs the leave to actually care for their child during that time and only if no other suitable person is available to do so. As such, for purposes of the FFCRA, the school is “closed” on days that the child cannot attend school in person.
- For the situation in which the school provides parents with a choice regarding whether their children will attend school in-person or remotely, for purposes of the FFCRA, for days that the parent chooses the remote learning option, FFCRA leave is not available because the school is open for the child to attend and it is the parent’s choice to keep the child home. This is true even if the parent chooses the remote learning option out of concern that the child may be exposed to and bring home Coronavirus. However, FFCRA emergency paid sick leave could still be available if the child would not be able to attend school due to a quarantine or isolation order or because a health care provider advises the child to self-isolate or self-quarantine due to concerns related to COVID-19.
- Lastly, the FAQs address the common situation of schools who have started the school year with remote instruction, but have kept the possibility open of in-person instruction later in the year depending on how conditions develop. The DOL confirmed that as long as the school offers only remote learning, and to the extent that the parent does not have the option of sending their child to school, FCRA leave is available. But if there is later a transition to in-person instruction, that could disqualify the parent’s eligibility for FFCRA leave, as discussed above.
Although many questions remain regarding availability of FFCRA paid leave, these questions at least tackle a few timely issues that parents may find themselves considering in this transitory time.
COVID-19 supplemental paid sick leave (Labor Code Section 248.1)
On September 9, 2020, Governor Newsom signed legislation that expands Coronavirus paid sick leave coverage to employers who have not been covered under the FFCRA. AB 1867, which is effective immediately, codifies an existing Executive Order providing paid sick leave to food sector workers, and establishes Coronavirus paid sick leave coverage to employees of private sector businesses of 500 or more employees and certain emergency responders and healthcare providers, who were exempted from the FFCRA. This publication focuses on the paid sick leave provisions applicable to non-healthcare/emergency responder and non-food sector employees.
Under AB 1867, covered employees who are required to leave their home to perform their jobs are eligible for up to 80 hours of paid sick leave when they are unable to work due to any of the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
- The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
- The employee is prohibited from working by their hiring entity due to health concerns related to the potential transmission of COVID-19.
The full 80 hours of paid sick leave is available if: (1) the employer considers the employee to work “full time,” or (2) the employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave. Otherwise, the amount of sick leave under this law is determined as follows:
- If the employee has a normal weekly schedule, the employee is entitled to supplemental leave in the amount of the total number of hours the covered worker is normally scheduled to work for the hiring entity over two weeks.
- If the employee works a variable number of hours, the employee is entitled to supplemental leave in the amount of 14 times the average number of hours the employee worked each day for the employer in the six months preceding the date the employee took COVID-19 supplemental paid sick leave. If the employee has worked for the employer over a period of fewer than six months but more than 14 days, this calculation shall instead be made over the entire period the employeehas worked for the hiring entity.
- If the employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the employee is entitled to supplemental leave in the amount of the total number of hours the employee has worked for that employer.
The Labor Commissioner’s FAQ specifies that an employer may not deny this supplemental paid sick leave based solely on a lack of certification from a healthcare provider, and that a healthcare provider’s certification cannot be a condition of providing this paid leave. However, the FAQs add that it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has other information indicating that the worker is not requesting the paid sick leave for a valid purpose. For example, if the employee qualifies for this paid sick leave because they are subject to a quarantine order to stay at home, but the employer subsequently learns that the worker was at a park, the employer could reasonably request documentation.
Under this law, the employee is paid for the leave time at a rate that is the greatest of: 1) local minimum wage, 2) state minimum wage, or 3) the regular rate of pay, up to a maximum of $511 per day or $5,110 per employee. An employer who provided leave for one of these specified reasons prior to the effective date, but at a rate lower than specified, may retroactively compensate employees for the pay differential. Moreover, a credit is available to an employer who provided leave for specified reasons in accordance with the Executive Order or the requirements of federal law or any local ordinance.
Employers are required to provide this supplemental sick leave to non-food sector employees starting September 19, 2020 at the latest. Employers may not require use of any other paid sick leave or paid or unpaid time off prior to or in lieu of using paid sick leave under this law.
Covered employers must take note of the new pay stub obligations! Similar to general paid sick leave under California law, employers are required to provide employees with written notification of the amount of this supplemental COVID-19 paid sick leave available on employees' itemized wage statements or a separate writing. Such information must be provided no later than the pay period following the law’s enactment on September 9, 2020.
The California Labor Commissioner has issued a model notice for employers to provide to employees through workplace postings, and/or electronically to employees who do not frequent the worksite. The notice for non-food sector employees can be found here. The notice for food sector employees can be found here.
These provisions are currently in effect through December 30, 2020 only.
Some provisions of this law may not apply to firefighters.
New Notification Requirements (Labor Code Section 6409.6)
On September 17, 2020, Governor Newsom signed AB 685 in to law, which requires employers to provide written notification to employees within one business day of receiving notice of potential exposure to the COVID-19 virus.
Specifically, this law (which is codified as Labor Code Section 6409.6) states that if an employer or representative of the employer receives “notice of potential exposure” to COVID-19, the employer shall take all of the following actions within one business day of the notice of potential exposure:
- Provide a written notice to all employees (including any employee’s exclusive representative if applicable), and the employers of subcontracted employees, who were on the premises at the same worksite as the “qualifying individual” within the infectious period that they may have been exposed to COVID-19 in a manner the employer normally uses to communicate employment-related information. Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
- Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections of the employee.
- Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.
- If an employer or representative of the employer is notified of the number of cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, within 48 hours, the employer shall notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation, and worksite of employees who meet the definition in subdivision (d) of a qualifying individual. An employer shall also report the business address and NAICS code of the worksite where the qualifying individuals work. An employer that has an outbreak subject to this section shall continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
The term “qualifying individual” is defined as any person who has any of the following:
- A laboratory-confirmed case of COVID-19, as defined by the State Department of Public Health.
- A positive COVID-19 diagnosis from a licensed health care provider.
- A COVID-19-related order to isolate provided by a public health official.
- Died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county.
The phrase “notice of potential exposure” means any of the following:
- Notification to the employer or representative from a public health official or licensed medical provider that an employee was exposed to a qualifying individual at the worksite.
- Notification to the employer or representative from an employee, or their emergency contact, that the employee is a qualifying individual.
- Notification through the testing protocol of the employer that the employee is a qualifying individual.
- Notification to an employer or representative from a subcontracted employer that a qualifying individual was on the worksite of the employer receiving notification.
“Worksite” is defined as the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter. In a multiworksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.
Generally, in non-healthcare or non-residential congregate setting workplaces, an “outbreak” is presently defined as three or more laboratory-confirmed cases of COVID-19 among employees who live in different households within a two-week period.
The above DOL clarifications and new California sick leave pay and notification obligations in one way or another affect almost every California employer. It is critical that employees review and update their policies and practices in this regard with the assistance of knowledgeable counsel.