Paid Leave Under the Families First Coronavirus Response Act

CourtWage And Hour Division
Citation85 FR 19326
Publication Date06 Apr 2020
Record Number2020-07237
Federal Register, Volume 85 Issue 66 (Monday, April 6, 2020)
[Federal Register Volume 85, Number 66 (Monday, April 6, 2020)]
                [Rules and Regulations]
                [Pages 19326-19357]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-07237]
                [[Page 19325]]
                Vol. 85
                Monday,
                No. 66
                April 6, 2020
                Part IV
                Department of Labor
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                Wage and Hour Division
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                29 CFR Part 826
                Paid Leave Under the Families First Coronavirus Response Act; Temporary
                Rule
                Federal Register / Vol. 85 , No. 66 / Monday, April 6, 2020 / Rules
                and Regulations
                [[Page 19326]]
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                DEPARTMENT OF LABOR
                Wage and Hour Division
                29 CFR Part 826
                RIN 1235-AA35
                Paid Leave Under the Families First Coronavirus Response Act
                AGENCY: Wage and Hour Division, Department of Labor.
                ACTION: Temporary rule.
                -----------------------------------------------------------------------
                SUMMARY: The Secretary of Labor (``Secretary'') is promulgating
                temporary regulations to implement public health emergency leave under
                Title I of the Family and Medical Leave Act (FMLA), and emergency paid
                sick leave to assist working families facing public health emergencies
                arising out of Coronavirus Disease 2019 (COVID-19) global pandemic. The
                leave is created by a time-limited statutory authority established
                under the Families First Coronavirus Response Act, Public Law 116-127
                (FFCRA), and is set to expire on December 31, 2020. The FFCRA and this
                temporary rule do not affect the FMLA after December 31, 2020.
                DATES: This rule is effective from April 2, 2020, through December 31,
                2020. This rule became operational on April 1, 2020.
                FOR FURTHER INFORMATION CONTACT: Amy DeBisschop, Director, Division of
                Regulations, Legislation, and Interpretation, Wage and Hour Division,
                U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW,
                Washington, DC 20210, telephone: (202) 693-0406 (this is not a toll-
                free number).
                SUPPLEMENTARY INFORMATION:
                I. Executive Summary
                II. Background
                 A. Emergency Paid Sick Leave Act (EPSLA)
                 B. Emergency Family and Medical Leave Expansion Act (EFMLEA)
                III. Discussion
                 A. General
                 B. Paid Leave Entitlements
                 C. Employee Eligibility
                 D. Employer Coverage
                 E. Intermittent Leave
                 F. Leave To Care for a Child Due to School or Place of Care
                Closure or Child Care Unavailability--Interaction Between the EPSLA
                and the EFMLEA
                 G. Leave To Care for a Child Due to School or Place of Care
                Closure or Child Care Unavailability--Interaction Between the EFMLEA
                and the FMLA
                 H. Employer Notice
                 I. Employee Notice of Need for Leave
                 J. Documentation of Need for Leave
                 K. Health Care Coverage
                 L. Multiemployer Plans
                 M. Return to Work
                 N. Recordkeeping
                 O. Prohibited Acts and Enforcement
                 P. Effect of Other Laws, Employer Practices, and Collective
                Bargaining Agreements
                IV. Statutory and Regulatory Requirements
                 A. Administrative Procedure Act
                 B. Executive Order 12866, Regulatory Planning and Review; and
                Executive Order 13563, Improved Regulation and Regulatory Review
                 C. Regulatory Flexibility Act
                 D. Unfunded Mandates Reform Act of 1995
                 E. Executive Order 13132 (Federalism)
                 F. Indian Tribal Governments
                 G. Paperwork Reduction Act
                I. Executive Summary
                 On March 18, 2020, President Trump signed into law the FFCRA, which
                creates two new emergency paid leave requirements in response to the
                COVID-19 global pandemic. Division E of the FFCRA, ``The Emergency Paid
                Sick Leave Act'' (EPSLA), entitles certain employees to take up to two
                weeks of paid sick leave. Division C of the FFCRA, ``The Emergency
                Family and Medical Leave Expansion Act'' (EFMLEA), which amends Title I
                of the Family and Medical Leave Act, 29 U.S.C. 2601 et seq. (FMLA),
                permits certain employees to take up to twelve weeks of expanded family
                and medical leave, ten of which are paid, for specified reasons related
                to COVID-19. On March 27, 2020, President Trump signed into law the
                Coronavirus Aid, Relief, and Economic Security Act, Public Law 116-136
                (CARES Act), which amends certain provisions of the EPSLA and the
                provisions of the FMLA added by the EFMLEA.
                 In general, the FFCRA requires covered employers to provide
                eligible employees up to two weeks of paid sick leave at full pay, up
                to a specified cap, when the employee is unable to work because the
                employee is subject to a Federal, State, or local quarantine or
                isolation order related to COVID-19, has been advised by a health care
                provider to self-quarantine due to concerns related to COVID-19, or is
                experiencing COVID-19 symptoms and seeking a medical diagnosis. The
                FFCRA also provides up to two weeks of paid sick leave at partial pay,
                up to a specified cap, when an employee is unable to work because of a
                need to care for an individual subject to a Federal, State, or local
                quarantine or isolation order related to COVID-19 or who has been
                advised by a health care provider to self-quarantine due to concerns
                related to COVID-19; because of a need to care for the employee's son
                or daughter whose school or place of care is closed, or whose child
                care provider is unavailable, due to COVID-19 related reasons; or
                because the employee is experiencing a substantially similar condition,
                as specified by the Secretary of Health and Human Services. The FFCRA
                also requires covered employers to provide up to twelve weeks of
                expanded family and medical leave, up to ten weeks of which must be
                paid at partial pay, up to a specified cap, when an eligible employee
                is unable to work because of a need to care for the employee's son or
                daughter whose school or place of care is closed, or whose child care
                provider is unavailable, due to COVID-19 related reasons.
                 The FFCRA covers private employers with fewer than 500 employees
                and certain public employers. Small employers with fewer than 50
                employees may qualify for an exemption from the requirement to provide
                paid leave due to school, place of care, or child care provider
                closings or unavailability, if the leave payments would jeopardize the
                viability of their business as a going concern.
                 Under the FFCRA, covered private employers qualify for
                reimbursement through refundable tax credits as administered by the
                Department of the Treasury, for all qualifying paid sick leave wages
                and qualifying family and medical leave wages paid to an employee who
                takes leave under the FFCRA, up to per diem and aggregate caps, and for
                allocable costs related to the maintenance of health care coverage
                under any group health plan while the employee is on the leave provided
                under the FFCRA. For information on the tax credits, see https://www.irs.gov/forms-pubs/about-form-7200 see also https://www.irs.gov/pub/irs-drop/n-20-21.pdf. For more information on the COVID-19 related
                small business loans, see https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources.
                 The CARES Act amended the FFCRA by providing certain technical
                corrections, as well as clarifying the caps for payment of leave;
                expanded family and medical leave to certain employees who were laid
                off or terminated after March 1, 2020, but are reemployed by the same
                employer prior to December 31, 2020; and provided authority to the
                Director of the Office of Management and Budget (OMB) to exclude
                certain Federal employees from paid sick leave and expanded family and
                medical leave.
                 The FFCRA grants authority to the Secretary to issue regulations
                for certain purposes. In particular, sections 3102(b), as amended by
                section 3611(7) of the CARES Act, and 5111(3) of the FFCRA grant the
                Secretary authority to issue regulations ``as necessary, to carry
                [[Page 19327]]
                out the purposes of this Act, including to ensure consistency'' between
                the EPSLA and the EFMLEA. The Department is issuing this temporary rule
                to carry out the purposes of the FFCRA. These new paid sick leave and
                expanded family and medical leave requirements became operational on
                April 1, 2020, effective on April 2, 2020, and will expire on December
                31, 2020.
                 Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
                the Office of Information and Regulatory Affairs (OIRA) designated this
                rule as a ``major rule'', as defined by 5 U.S.C. 804(2).
                II. Background
                A. Emergency Paid Sick Leave Act (EPSLA)
                 The EPSLA requires employers to provide paid sick leave to
                employees who are unable to work for six reasons having to do with
                COVID-19 where the employee (1) is subject to a Federal, State, or
                local quarantine or isolation order related to COVID-19; (2) has been
                advised by a health care provider to self-quarantine due to concerns
                related to COVID-19; (3) is experiencing symptoms of COVID-19 and is
                seeking a medical diagnosis; (4) is caring for an individual who is
                subject to an order as described in (1), or who has been advised as
                described in (2); (5) is caring for his or her son or daughter whose
                school or place of care has been closed or whose child care provider is
                unavailable due to COVID-19 related reasons; or (6) is experiencing any
                other substantially similar condition specified by the Secretary of
                Health and Human Services in consultation with the Secretary of the
                Treasury and the Secretary of Labor.
                 Private employers with fewer than 500 employees, as well as public
                agencies with one or more employees, must comply with the EPSLA,
                although the Secretary has authority to exempt by rulemaking certain
                employers with fewer than 50 employees from providing paid sick leave
                to an employee who is unable to work because the employee is caring for
                his or her son or daughter whose school or place of care has been
                closed or whose child care provider is unavailable due to COVID-19
                related reasons when compliance with this requirement would
                ``jeopardize the viability of the business as a going concern.'' FFCRA
                sections 5100(2)(B)(i)-(ii), 5111(2). The EPSLA applies to employees of
                covered employers regardless of how long an employee has worked for an
                employer, except that employers may exclude employees who are health
                care providers or emergency responders from taking paid sick leave;
                similarly, the Secretary has the authority to exclude by rulemaking
                ``certain health care providers and emergency responders'' from the
                requirements of the EPSLA. FFCRA sections 5102(a), 5102(e)(1), 5111(1).
                The CARES Act also added certain exemptions that may apply to Federal
                employers and employees, which are discussed below.
                 The EPSLA entitles full-time covered employees to up to 80 hours of
                paid sick leave, and generally entitles part-time employees to up to
                the number of hours that they work on average over a two-week period,
                although special rules may apply to part-time employees with varying
                schedules. For an employee who takes paid sick leave because he or she
                is subject to a quarantine or isolation order, has been advised to
                self-quarantine by a health care provider, or is experiencing symptoms
                of COVID-19 and is seeking a medical diagnosis, the EPSLA provides for
                paid sick leave at the greater of the employee's regular rate of pay
                under section 7(e) of the Fair Labor Standards Act of 1938, as amended,
                29 U.S.C. 201 et seq. (FLSA) (29 U.S.C. 207(e)), or the applicable
                minimum wage (federal, state, or local), up to $511 per day and $5,110
                in the aggregate. An employee who takes paid sick leave for any other
                qualifying reason under the EPSLA is entitled to be paid two-thirds of
                that amount, up to $200 per day and $2,000 in the aggregate. An
                employer may not require an employee to use other paid leave provided
                by the employer before the employee uses the paid sick leave, nor may
                an employer require the employee involved to search for or find a
                replacement employee to cover the hours during which the employee is
                using paid sick leave.
                 The EPSLA also provides that employers who fail to provide paid
                sick leave as required are considered to have failed to pay minimum
                wages in violation of section 6 of the FLSA, and that such employers
                are subject to enforcement proceedings described in sections 16 and 17
                of the FLSA. 29 U.S.C. 206, 216, 217. In addition, the EPSLA prohibits
                employers from discharging, disciplining, or in any other manner
                discriminating against an employee who takes paid sick leave under the
                EPSLA, files any complaint under or relating to the EPSLA, institutes
                any proceeding under or relating to the EPSLA, or testifies in any such
                proceeding. See FFCRA section 5104, as amended by CARES Act section
                3611(8). Employers who violate this prohibition are considered to have
                violated section 15(a)(3) of the FLSA, and are subject to the penalties
                described in sections 216 and 217 of the FLSA. 29 U.S.C. 215(a)(3),
                216, 217. The EPSLA also authorizes the Secretary to investigate and
                gather data to ensure compliance with the EPSLA in the same manner as
                authorized by sections 9 and 11 of the FLSA, and the CARES Act section
                3611(9) (adding FFCRA section 5105(c)); 29 U.S.C. 209, 211.
                 The EPSLA requires employers to post a notice of employees' rights
                under the EPSLA. It permits, but does not require, employers who are
                signatories to multiemployer collective bargaining agreements to
                fulfill their obligations under the EPSLA by making contributions to a
                multiemployer fund, plan, or program, subject to certain requirements.
                Nothing in the EPSLA diminishes the rights or benefits that an employee
                is entitled to under any other Federal, State, or local law; collective
                bargaining agreement; or existing employer policy. Moreover, the EPSLA
                does not require financial or other reimbursement by an employer to an
                employee for unused paid sick leave upon the employee's separation from
                employment.
                B. Emergency Family and Medical Leave Expansion Act (EFMLEA)
                 The EFMLEA requires employers to provide expanded paid family and
                medical leave to eligible employees who are unable to work because the
                employee is caring for his or her son or daughter whose school or place
                of care is closed or whose child care provider is unavailable due to a
                public health emergency, defined as an emergency with respect to COVID-
                19, declared by a Federal, State, or local authority.
                 The EFMLEA applies to different sets of employers and employees
                from the other provisions of the FMLA. Private employers with fewer
                than 500 employees must comply with the EFMLEA, although the Secretary
                has the authority to exempt by rulemaking employers with fewer than 50
                employees from EFMLEA's requirements when compliance with the EFMLEA
                would ``jeopardize the viability of the business as a going concern.''
                FFCRA section 3102(b) (adding FMLA section 110(a)(1)(B), (3)(B)).
                Generally, public agencies as defined at Sec. 826.10(a) must comply
                with the EFMLEA. As it relates to the Federal government, however, only
                those Federal employees covered by Title I of the FMLA are potentially
                eligible under the EFMLEA. 29 U.S.C. 2611(2)(B)(i). The EFMLEA applies
                to employees of covered employers if such employees have been employed
                by the employer for at least 30 calendar days. This includes employees
                who were laid off or
                [[Page 19328]]
                otherwise terminated on or after March 1, 2020, had worked for the
                employer for at least thirty of the prior 60 calendar days, and were
                subsequently rehired or otherwise reemployed by the same employer.
                CARES Act section 3605 (amending FMLA section 110(a)(1)(A)). As with
                the EPSLA, employers may, however, exclude employees who are health
                care providers or emergency responders from taking expanded family and
                medical leave, and similarly, the Secretary has the authority to
                exclude by rulemaking ``certain health care providers and emergency
                responders'' from the requirements of the EFMLEA.
                 An employee is entitled to take up to twelve weeks of leave for the
                purpose described in the EFMLEA. 29 U.S.C. 2611(a)(1). The first two
                weeks (usually ten workdays) of this leave are unpaid, though an
                employee may substitute paid sick leave under the EPSLA or paid leave
                under the employer's preexisting policies for these two weeks of unpaid
                leave. Unlike FMLA leave taken for other reasons, the following period
                of up to ten weeks of expanded family and medical leave must be paid.
                Specifically, after the first two weeks of leave, expanded family and
                medical leave under the FFCRA must be paid at two-thirds the employee's
                regular rate of pay. For each day of leave, the employee receives
                compensation based on the number of hours he or she would otherwise be
                normally scheduled to work, although special rules may apply to
                employees with varying schedules. An eligible employee may elect to
                use, or an employer may require that an employee use, such expanded
                family and medical leave concurrently with any leave offered under the
                employer's policies that would be available for the employee to take to
                care for his or her child, such as vacation or personal leave or paid
                time off. The total EFMLEA payment per employee for this ten-week
                period is capped at $200 per day and $10,000 in the aggregate, for a
                total of no more than $12,000 when combined with two weeks of paid
                leave taken under the EPSLA.
                 The EFMLEA provides that if the need for expanded family and
                medical leave is foreseeable, employees shall provide employers with
                notice of the leave as soon as practicable. The EFMLEA defines
                conditions under which employees who take leave are entitled to be
                restored to their positions, while exempting employers with fewer than
                twenty-five employees from this requirement under certain
                circumstances. The FMLA's general prohibitions on interference with
                rights and discrimination, 29 U.S.C. 2615, as well as the FMLA's
                enforcement provisions, 29 U.S.C. 2617, apply for purposes of the
                EFMLEA, except that an employee's right to file a lawsuit directly
                against an employer does not extend to employers who were not
                previously covered by the FMLA.
                 The EFMLEA permits, but does not require, employers who are
                signatories to multiemployer collective bargaining agreements to
                fulfill their obligations under the EFMLEA by making contributions to a
                multiemployer fund, plan, or program, subject to certain requirements.
                III. Discussion
                 The paid leave requirements of the EPSLA and the EFMLEA are
                described and interpreted by the Secretary in regulations to appear in
                new Part 826 of Title 29 of the Code of Federal Regulations, and
                addressed below.
                A. General
                 Section 826.10 contains definitions of terms used in the EPSLA and
                the EFMLEA as well as in this rule. As a general matter, the FMLA
                definitions apply to the EFMLEA unless specific definitions were
                included in the EFMLEA. The majority of the terms found in the EPSLA
                and the EFMLEA are based on terms that are defined in other statutes
                and/or their implementing regulations, such as the FLSA. For example,
                the EPSLA expressly adopts the definition of ``person'' from the FLSA
                and the definition of ``son or daughter'' from the FMLA.
                 The EFMLEA defines ``qualifying need related to a public health
                emergency'' as a need for leave ``to care for the son or daughter under
                18 years of age of such employee if the school or place of care has
                been closed, or the child care provider of such son or daughter is
                unavailable, due to a public health emergency.'' FFCRA section 3102(b)
                (adding FMLA section 110(a)(1)(A)). This definition could be read to
                narrow the FMLA definition of ``son or daughter'' for purposes of
                expanded family and medical leave, as the FMLA expressly includes
                children 18 years of age or older and incapable of self-care because of
                a mental or physical disability. 29 U.S.C. 2611(12). The EFMLEA does
                not contain a definition of ``son or daughter,'' however, and therefore
                the FMLA definition of that term applies to expanded family and medical
                leave. The EPSLA also adopts the FMLA definition of ``son or
                daughter.'' As addressed more fully below in the discussion of Sec.
                826.20, the Department believes it would create needless confusion and
                complication to have different rules under the EFMLEA and the EPSLA for
                when an employee may take leave to care for his or her son or daughter
                whose school or place of care is closed or child care provider is
                unavailable due to COVID-19 related reasons. The Department is
                therefore treating the definitions as the same (i.e., to include
                children under 18 years of age and children age 18 or older who are
                incapable of self-care because of a mental or physical disability),
                pursuant to its statutory authority to issue regulations to ensure
                consistency between the EPSLA and the EFMLEA.
                 Only one other definition in the FFCRA--``telework''--bears further
                discussion here. Section 826.10 defines the word broadly to effectuate
                the statute's underlying purposes and also outlines when an employee is
                able to telework. The definition also clarifies that telework is no
                less work than if it were performed at an employer's worksite. As a
                result, employees who are teleworking for COVID-19 related reasons must
                always record--and be compensated for--all hours actually worked,
                including overtime, in accordance with the requirements of the FLSA.
                See 29 CFR 785.11-13; 785.48; see also 29 U.S.C. 206, 207; 29 CFR part
                778. However, an employer is not required to compensate employees for
                unreported hours worked while teleworking for COVID-19 related reasons,
                unless the employer knew or should have known about such telework. See,
                e.g., Allen v. City of Chicago, 865 F.3d 936 (7th Cir. 2017), cert.
                denied, 138 S. Ct. 1302, 200 L. Ed. 2d 474 (2018). While the
                Department's regulations and interpretations of the FLSA generally
                apply to employees who are teleworking for COVID-19 related reasons,
                the Department has concluded that Sec. 790.6 and its continuous
                workday guidance are inconsistent with the objectives of the FFCRA and
                CARES Act only with respect to such employees.
                 The FFCRA and these regulations encourage employers and employees
                to implement highly flexible telework arrangements that allow employees
                to perform work, potentially at unconventional times, while tending to
                family and other responsibilities, such as teaching children whose
                schools are closed for COVID-19 related reasons. But section 790.6 and
                the Department's continuous workday guidance generally provide that all
                time between performance of the first and last principal activities is
                compensable work time. See 29 CFR 790.6(a). Applying this guidance to
                employers with employees who are teleworking for COVID-19 related
                reasons would disincentivize and undermine the very flexibility in
                teleworking arrangements that are
                [[Page 19329]]
                critical to the FFCRA framework Congress created within the broader
                national response to COVID-19. As a result, the Department has
                determined that an employer allowing such flexibility during the COVID-
                19 pandemic shall not be required to count as hours worked all time
                between the first and last principal activity performed by an employee
                teleworking for COVID-19 related reasons as hours worked. For example,
                an employee may agree with an employer to perform telework for COVID-19
                related reasons on the following schedule: 7-9 a.m., 12:30-3 p.m., and
                7-9 p.m. on weekdays. This allows an employee, for example, to help
                teach children whose school is closed or assist the employee's parents
                who are temporarily living with the family, reserving work times when
                there are fewer distractions. Of course, the employer must compensate
                the employee for all hours actually worked--7.5 hours--that day, but
                not all 14 hours between the employee's first principal activity at 7
                a.m. and last at 9 p.m. Section 790.6 and the Department's guidance
                regarding the continuous workday continue to apply to all employees who
                are not teleworking for COVID-19 related reasons.
                B. Paid Leave Entitlements
                 Section 826.20 of Title 29 of the Code of Federal Regulations
                describes the circumstances under which a covered employer must provide
                paid sick leave and/or expanded family and medical leave to an eligible
                employee.
                 Section 826.20(a) explains that an employee may take paid sick
                leave if the employee is unable to work because of any one of six
                qualifying reasons related to COVID-19. The first reason for paid sick
                leave applies where an employee is unable to work because he or she is
                subject to a Federal, State, or local COVID-19 quarantine or isolation
                order. Quarantine or isolation orders 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. Section 826.20(a)(2) explains that an employee may
                take paid sick leave only if being subject to one of these orders
                prevents him or her from working or teleworking as described therein.
                The question is whether the employee would be able to work or telework
                ``but for'' being required to comply with a quarantine or isolation
                order.
                 An employee subject to one of these orders may not take paid sick
                leave where the employer does not have work for the employee. This is
                because the employee would be unable to work even if he or she were not
                required to comply with the quarantine or isolation order. For example,
                if a coffee shop closes temporarily or indefinitely due to a downturn
                in business related to COVID-19, it would no longer have any work for
                its employees. A cashier previously employed at the coffee shop who is
                subject to a stay-at-home order would not be able to work even if he
                were not required to stay at home. As such, he may not take paid sick
                leave because his inability to work is not due to his need to comply
                with the stay-at-home order, but rather due to the closure of his place
                of employment.\1\ That said, he may be eligible for state unemployment
                insurance and should contact his State workforce agency or State
                unemployment insurance office for specific questions about his
                eligibility.
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                 \1\ This analysis holds even if the closure of the coffee shop
                was substantially caused by a stay-at-home order. If the coffee shop
                closed due to its customers being required to stay at home, the
                reason for the cashier being unable to work would be because those
                customers were subject to the stay-at-home order, not because the
                cashier himself was subject to the order. Similarly, if the order
                forced the coffee shop to close, the reason for the cashier being
                unable to work would be because the coffee shop was subject to the
                order, not because the cashier himself was subject to the order.
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                 Additionally, Sec. 826.20(a)(2) explains that an employee subject
                to a quarantine or isolation order is able to telework, and therefore
                may not take paid sick leave, if (a) his or her employer has work for
                the employee to perform; (b) the employer permits the employee to
                perform that work from the location where the employee is being
                quarantined or isolated; and (c) there are no extenuating circumstances
                that prevent the employee from performing that work. For example, if a
                law firm permits its lawyers to work from home, a lawyer would not be
                prevented from working by a stay-at-home order, and thus may not take
                paid sick leave as a result of being subject to that order. In this
                circumstance, the lawyer is able to telework even if she is required to
                use her own computer instead of her employer's computer. But, she would
                not be able 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.
                 The second reason for paid sick leave applies where an employee is
                unable to work because he or she has been advised by a health care
                provider, as defined in 29 CFR 825.102, to self-quarantine for a COVID-
                19 reason. Section 826.20(a)(3) explains that the advice to self-
                quarantine must be based on the health care provider's belief that the
                employee has COVID-19, may have COVID-19, or is particularly vulnerable
                to COVID-19. And, self-quarantining must prevent the employee from
                working. An employee who is self-quarantining is able to telework, and
                therefore may not take paid sick leave for this reason, if (a) his or
                her employer has work for the employee to perform; (b) the employer
                permits the employee to perform that work from the location where the
                employee is self-quarantining; and (c) there are no extenuating
                circumstances, such as serious COVID-19 symptoms, that prevent the
                employee from performing that work. For instance, if the lawyer in the
                above example would be able to work while self-quarantining at home,
                she may not take paid sick leave due to a need to self-quarantine.
                 The third reason for paid sick leave applies where an employee is
                experiencing symptoms of COVID-19 and seeking a medical diagnosis.
                Section 826.20(a)(4) explains that symptoms that could trigger this
                are: Fever, dry cough, shortness of breath, or other COVID-19 symptoms
                identified by the U.S. Centers for Disease Control and Prevention
                (CDC). Additionally, paid sick leave taken for this reason must be
                limited to the time the employee is unable to work because he or she is
                taking affirmative steps to obtain a medical diagnosis. Thus, an
                employee experiencing COVID-19 symptoms may take paid sick leave, for
                instance, for time spent making, waiting for, or attending an
                appointment for a test for COVID-19. But, the employee may not take
                paid sick leave to self-quarantine without seeking a medical diagnosis.
                An employee who is waiting for the results of a test is able to
                telework, and therefore may not take paid sick leave, if: (a) His or
                her employer has work for the employee to perform; (b) the employer
                permits the employee to perform that work from the location where the
                employee is waiting; and (c) there are no extenuating circumstances,
                such as serious COVID-19 symptoms, that may prevent the employee from
                performing that work. An employee may continue to take leave while
                experiencing any of the symptoms specified at Sec. 826.20(a)(4),
                however; or may continue to take leave after testing positive for
                COVID-19, regardless of symptoms experienced, provided that the health
                care provider advises the employee to self-quarantine. In addition, an
                employee who is unable to telework may continue to take paid sick leave
                under this reason while awaiting
                [[Page 19330]]
                a test result, regardless of the severity of the COVID-19 symptoms that
                he or she might be experiencing. In the case of an employee who
                exhibits COVID-19 symptoms and seeks medical advice but is told that he
                or she does not meet the criteria for testing and is advised to self-
                quarantine, he or she is eligible for leave under the second reason,
                provided he or she meets all the requirements spelled out above.
                 The fourth reason for paid sick leave applies where an employee is
                unable to work because he or she needs to care for an individual who is
                either: (a) Subject to a Federal, State, or local quarantine or
                isolation order; or (b) has been advised by a health care provider to
                self-quarantine due to concerns related to COVID-19. This qualifying
                reason applies only if but for a need to care for an individual, the
                employee would be able to perform work for his or her employer.
                Accordingly, an employee caring for an individual may not take paid
                sick leave if the employer does not have work for him or her.
                Furthermore, if the employee must have a genuine need to care for the
                individual. Accordingly, Sec. 826.20(a)(5) explains that paid sick
                leave may not be taken to care for someone with whom the employee has
                no personal relationship. Rather, 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. Additionally, the individual being cared for must: (a) Be
                subject to a Federal, State, or local quarantine or isolation order as
                described above; 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.
                 The fifth reason for paid sick leave applies when the employee is
                unable to work because the employee needs to care for his or her son or
                daughter if: (a) The child's school or place of care has closed; or (b)
                the child care provider is unavailable, due to COVID-19 related
                reasons. Again, the employee must be able to perform work for his or
                her employer but for the need to care for his or her son or daughter,
                which means an employee may not take paid sick leave if the employer
                does not have work for him or her. Moreover, an employee may take paid
                sick leave to care for his or her child only when the employee needs
                to, and actually is, caring for his or her child. Generally, an
                employee does not need to take such leave if another suitable
                individual--such as a co-parent, co-guardian, or the usual child care
                provider--is available to provide the care the employee's child needs.
                 The sixth reason for paid sick leave applies if the employee is
                unable to work because the employee is experiencing any other
                substantially similar condition specified by the Secretary of Health
                and Human Services in consultation with the Secretary of the Treasury
                and the Secretary of Labor.
                 Section 826.20(b) explains that an employee may take expanded
                family and medical leave if the employee is unable to work due to a
                need for leave to care for his or her son or daughter if the child's
                school or place of care is closed, or the child care provider of such
                son or daughter is unavailable, for reasons related to COVID-19. The
                EFMLEA provides that this reason for leave is for closures or
                unavailability ``due to a public health emergency,'' which the statute
                defines as ``an emergency with respect to COVID-19 declared by a
                Federal, State, or local authority.'' FFCRA section 3102(b) (adding
                FMLA section 110(a)(2)(A), (B)). In keeping with the Department's
                statutory authority to issue regulations to ensure consistency between
                the EPSLA and the EFMLEA, the regulatory text uses ``for reasons
                related to COVID-19'' to match the regulatory text related to the same
                reason for taking paid sick leave. In other words, the leave authorized
                by the EFMLEA is the same as the fifth reason discussed above
                authorized by the EPSLA, i.e., leave required when an employee is
                unable to work because of a need to care for his or her son or daughter
                if the school or place of care of the son or daughter is closed, or the
                child care provider of the son or daughter is unavailable, due to
                COVID-19 related reasons.
                 The Department recognizes that section 3102 of the EFMLEA defines
                ``qualifying need related to a public health emergency'' as a need for
                leave ``to care for the son or daughter under 18 years of age of such
                employee if the school or place of care has been closed, or the child
                care provider of such son or daughter is unavailable, due to a public
                health emergency.'' FFCRA section 3102(b) (adding FMLA section
                110(a)(2)(A), (B)). This definition can be read to narrow the FMLA
                definition of son or daughter, which includes children under 18 years
                of age or 18 years of age or older and incapable of self-care because
                of a mental or physical disability. 29 U.S.C. 2611(12). Section 5110(4)
                of the EPSLA states that the FMLA definition of son or daughter applies
                when, among other things, the employee is unable to work because the
                employee is caring for a son or daughter of the employee if: (a) The
                school or place of care of the son or daughter has been closed; or (b)
                the child care provider of such son or daughter is unavailable, due to
                COVID-19 related reasons.
                 The Department considered interpreting the leave provision of the
                EFMLEA to apply only when an employee is unable to work because of a
                need to care for a child under age 18 years of age, and not to apply
                when a child is 18 years of age or older and incapable of self-care
                because of a mental or physical disability. The Department also
                recognizes there could be other interpretations of the ``under 18 years
                of age'' phrase within the EFMLEA. However, the Department has decided
                not to employ these alternative interpretations because it sees
                significant disadvantages to having different rules under the EFMLEA
                and the EPSLA for when an employee may take leave to care for his or
                her son or daughter. Having different rules would introduce unnecessary
                complexity and incongruity into the leave provisions and could
                improperly deny leave to employees with a need to care for a child age
                18 or older who is incapable of caring for himself or herself because
                of a mental or physical disability. The Department is therefore
                treating the definitions as the same pursuant to its authority under
                section 5111 of the EPSLA and section 110(a) of the FMLA, as amended by
                the EFMLEA, and the CARES Act, and will issue regulations to ensure
                consistency between the EPSLA and the EFMLEA.
                 The Department intends that providing maximum flexibility to
                employers and employees during the public health emergency should not
                impact the underlying relationships between an employer and an
                employee. More specifically, nothing in this Act should be construed as
                impacting an employee's exempt status under the FLSA. For example, an
                employee's use of intermittent leave combined with either paid sick
                leave or expanded family and medical leave should not be construed as
                undermining the employee's salary basis for purposes of 29 U.S.C. 213
                and 29 CFR part 541.
                 Section 826.21 explains how much paid sick leave an employee is
                entitled to under the EPSLA. Under section 5102(b)(2) of the EPSLA, a
                full-time employee is entitled to 80 hours of paid sick leave, and a
                part-time employee is entitled to the ``number of hours that such
                employee works, on average, over a 2-week period.'' Section
                5110(5)(C)(i) further provides that if the part-time employee's
                ``schedule varies from week to week . . . the average number of
                [[Page 19331]]
                hours that the employee was scheduled per day over the 6-month period
                ending on the date on which the employee takes the paid sick time''
                shall be used in place of the ``number of hours that such employee
                works, on average, over a 2-week period'' under section 5102(b)(2)(B)
                to determine the number of paid sick leave hours.
                 The Department does not believe the EPSLA intended to replace the
                average number of hours worked ``over a 2-week period'' with the
                average number of hours scheduled ``per day'' as the number of paid
                sick leave hours because such replacement would create a contradiction
                within the statute and lead to an absurd outcome. Setting hours of paid
                sick leave ``equal to the average number of hours that the employee was
                scheduled per day,'' as section 5110(5)(C)(i) requires, would violate
                the requirement under section 5102(b)(2)(B) that ``hours of paid sick
                time to which an employee is entitled shall be . . . equal to the
                number of hours that such employee works, on average, over a 2-week
                period'' for the obvious reason that a day is different from a two-week
                period. And the number of hours an employee typically works in a day is
                an order of magnitude lower than the number of hours that an employee
                typically works in a two-week period. Thus, an employee who works a
                varied schedule would be entitled to an order of magnitude fewer hours
                of paid sick leave than if the employee had worked a regular schedule.
                In light of the FFCRA, the Department can think of no reason why
                Congress would penalize part-time employees who work varied as opposed
                to regular schedules.
                 Rather, the Department believes Congress intended to use the daily
                average to compute the two-week average. Because there are fourteen
                calendar days over a two-week period, the Department believes Congress
                intended for the EPSLA to provide part-time employees whose weekly
                schedule varies with paid sick leave equal to fourteen times the
                ``number of hours that the employee was scheduled per [calendar] day,''
                averaged over the above-mentioned six-month period. An employer may
                also use twice the number of hours that an employee was scheduled to
                work per workweek, averaged over the six-month period.
                 The EPSLA does not define what it means to be a ``full-time'' or
                ``part-time'' employee. Because paid sick leave is designed to provide
                leave ``over a 2-week period,'' and the EPSLA provides up to 80 hours
                of such leave to full-time employees, the Department believes a full-
                time employee is an employee who works at least 80 hours over two
                workweeks, or at least 40 hours each workweek. As a result, the
                Department defines a full-time employee as an employee who is normally
                scheduled to work at least 40 hours each workweek in Sec.
                826.21(a)(2). Further, Sec. 826.21(a)(3) provides that an employee who
                does not have a normal weekly schedule may also be a full-time employee
                if he or she is scheduled to work, on average, at least 40 hours each
                workweek. For consistency purposes, this weekly average should be
                computed over the same six-month period as the ``Varying Schedule Hours
                Calculation'' for certain part-time employees under section
                5110(5)(C)(i) of the FFCRA. Thus, Sec. 826.21(a)(3) provides that the
                average hours per workweek for an employee who does not have a normal
                weekly schedule should be calculated over the six-months prior to the
                date on which leave is requested to determine if he or she is a full-
                time employee. If the employee has been employed for less than six
                months, the average hours per workweek is computed over the entire
                period of employment.
                 Under Sec. 826.21(b), a part-time employee is an employee who is
                normally scheduled to work fewer than 40 hours each workweek or--if the
                employee lacks a normal weekly schedule--who is scheduled to work, on
                average, fewer than 40 hours each workweek. Under Sec. 826.21(b)(1), a
                part-time employee who works a normal schedule is entitled to paid sick
                leave equal to the number of hours he or she is normally scheduled to
                work over a two-workweek period. As discussed above, the Department
                believes that a part-time employee whose weekly work schedule varies
                should be entitled to paid sick leave equal to fourteen times the
                average number of hours that the employee was scheduled to work per
                calendar day over the six-month period ending on the date on which the
                employee takes paid sick leave, including hours for which the employee
                took leave of any type. This computation is possible only if the
                employee has been employed for at least six months. Thus, Sec.
                826.21(b)(2) provides variable-schedule part-time employees with such
                an amount of paid sick leave.
                 Section 5110(5)(C)(ii) of the EPSLA further provides that, if a
                part-time employee with a varying weekly schedule has been employed for
                fewer than six months, ``the reasonable expectation of the employee at
                the time of hiring of the average number of hours per day that the
                employee would normally be scheduled to work'' should be used ``in
                place of'' the average number of hours worked ``over a 2-week period''
                under section 5102(b)(2)(B) to determine the amount of paid sick leave
                to which an employee is entitled. Again, the Department does not
                believe that in the EPSLA Congress intended for ``the reasonable
                expectation . . . of the average number of hours per day'' to be used
                ``in place of'' the average number of hours worked ``over a 2-week
                period.'' Rather, Congress intended to use the expected daily average
                number of hours to estimate the two-week average. The Department
                further believes such ``reasonable expectation'' is best evidenced by
                an agreement between the employer and employee at the time of hiring.
                 Thus, Sec. 826.21(b)(3) states that a part-time employee with a
                varying schedule who has been employed for fewer than six months is
                entitled to fourteen times the expected number of hours the employee
                and employer agreed at the time of hiring that the employee would work,
                on average, each calendar day. This is equal to twice the average
                number of hours that the employee would be expected to work each
                workweek. The agreement could have used any time period--e.g., each
                workweek, month, or year--to express the average number of hours the
                employee was expected to work, so long as that daily average could be
                extrapolated. In the absence of such an agreement, the Department
                believes that the actual average number of hours the employee was
                scheduled to work each workday demonstrates ``the reasonable
                expectation . . . of the average number of hours per day that the
                employee would normally be scheduled to work.'' FFCRA section
                5110(5)(C)(ii). Accordingly, Sec. 826.21(b)(3) further states that, in
                the absence of an agreement regarding the expected number of hours
                worked each day, a part-time employee with a varying schedule who has
                been employed for fewer than six months ``is entitled to up to the
                number of hours of paid sick leave equal to fourteen times the average
                number of hours per calendar day that the employee was scheduled to
                work over the entire period of employment, including hours for which
                the employee took leave of any type.'' An employer may also use twice
                the number of hours that an employee was scheduled to work per
                workweek, on average, over the six-month period.
                 Section 826.22 explains the amount of pay due to employees who take
                paid sick leave. If the employee takes paid sick leave because he or
                she is subject to a Federal, State, or local COVID-19 quarantine or
                isolation order; has been advised by a health care provider to self-
                quarantine for COVID-related reasons;
                [[Page 19332]]
                or is experiencing COVID-19 symptoms and seeking a medical diagnosis,
                the employer must pay the employee his or her regular rate of pay
                (subject to the qualifications described below) for each hour of paid
                sick leave taken. If an employee takes paid sick leave because of any
                other COVID-19 qualifying reason, the employer must pay the employee
                two-thirds of the employee's regular rate of pay (subject to the
                qualifications described below).
                 If the employee's regular rate of pay is lower than the Federal,
                State, or local minimum wage (if applicable to the employee), the
                employee should instead be paid the highest of such amounts. That means
                an employee taking paid sick leave because he or she is subject to a
                Federal, State, or local COVID-19 quarantine or isolation order; has
                been advised by a health care provider to self-quarantine for COVID-
                related reasons; or is experiencing COVID-19 symptoms and seeking a
                medical diagnosis must be paid the highest applicable minimum wage
                (federal, state, or local). And, an employee taking paid sick leave for
                any other COVID-19 qualifying reason must be paid at least two-thirds
                of the highest applicable minimum wage.
                 The amount an employer is required to pay is capped at $511 per day
                of paid sick leave taken and $5,110 in total per covered employee for
                all paid sick leave pay. Furthermore, where an employee is taking paid
                sick leave at two-thirds pay, the amount of pay is subject to a lower
                cap of $200 per day of leave and $2,000 in total per covered employee
                for all paid sick leave that is paid at two-thirds pay.
                 Section 826.23 explains that expanded family and medical leave is a
                type of FMLA leave that is available for certain eligible employees
                between April 1, 2020, and December 31, 2020. As such, Sec. 826.23(a)
                explains that an eligible employee is entitled to up to twelve
                workweeks of expanded family and medical leave, as provided under
                section 102 of the FMLA, during that period. See 29 U.S.C. 2612; see
                also 29 CFR 825.200. Section 826.23(b) further clarifies that any time
                taken by an eligible employee as expanded family and medical leave
                counts towards the twelve workweeks of FMLA leave to which the employee
                is entitled under section 102 of the FMLA and 29 CFR 825.200. Because
                the FFCRA amends the FMLA, and in particular references Section
                102(d)(2)(B) of the FMLA, Sec. 826.23 explains that an employee may
                elect to use, or an employer may require an employee to use, accrued
                leave that under the employer's policies would be available to the
                employee to care for a child, such as vacation or personal leave or
                paid time off concurrently with the expanded family and medical leave
                under the EFMLEA. Although Section 102(d)(2)(B) is read broader in the
                traditional FMLA context to include sick and medical leave, the
                Department notes that the FMLA is in part a medical leave, whereas the
                leave provided under the FFCRA is solely for care for a family (i.e., a
                child whose school or place of care is closed or whose child care
                provider is unavailable). The Department believes that this flexibility
                carries out the purposes of the FFCRA by allowing employees to receive
                full pay during the period for which they have preexisting accrued
                vacation or personal leave or paid time off, and allowing employers to
                require employees to take such leave and minimize employee absences.
                 Section 826.24 explains the amount an employer must pay an employee
                for each day of expanded family and medical leave under the EFMLEA
                taken to care for his or her child whose school or place of care is
                closed, or whose child care provider is unavailable, for a COVID-19
                related reason. The payment requirement under the EFMLEA is triggered
                after two weeks that an employee uses leave for this reason. For each
                day of expanded family and medical leave after the initial two-week
                period, the employer must pay an employee taking such leave two-thirds
                of the employee's regular rate times the number of hours the employee
                would normally be scheduled to work that day, up to a maximum of $200
                per day or $10,000 in total for the additional ten workweeks.
                 Some employees do not have a regular work schedule. If the
                employee's ``schedule varies week to week to such an extent that an
                employer is unable to determine with certainty [that] number of
                hours,'' section 110(b)(2)(C)(i) of the FMLA, as amended by the EFMLEA,
                requires the employer to compute pay per day of expanded family and
                medical leave based on ``the average number of hours the employee was
                scheduled per day over the six-month period ending on the date on which
                the employee takes such leave, including hours for which the employee
                took leave of any type.'' This six-month average of daily hours is
                possible only if the employee has been employed for at least six
                months. The Department does not believe Congress intended for the
                EFMLEA to use this six-month average only where an employee's
                ``schedule varies week to week,'' but also where the schedule varies
                day to day. This is because, even if an employee is scheduled for the
                same number of hours each workweek, day-to-day variations within each
                workweek could prevent an employer from determining the number of hours
                an employee would have been scheduled to work on a particular
                workday.\2\ Thus, Sec. 826.24(b) provides that the six-month average
                set forth in section 110(b)(2)(C) of the FMLA, as amended by the
                EFMLEA, is to be used to compute pay for each day of expanded family
                and medical leave taken where an employee's work schedule varies,
                without a week-to-week requirement, and has been employed for at least
                six months.
                ---------------------------------------------------------------------------
                 \2\ For instance, an employee may always work 40 hours each
                workweek, but on some weeks the employee works five eight-hour
                shifts and on other weeks he or she works four ten-hour shifts.
                ---------------------------------------------------------------------------
                 For an employee with a varying schedule of hours who has been
                employed for fewer than six months, section 110(b)(2)(C)(i) of the
                FMLA, as amended by the EFMLEA, provides that ``the reasonable
                expectation of the employee at the time of hiring of the average number
                of hours per day that the employee would normally be scheduled to
                work'' should be used to compute the amount of pay for each day of
                expanded family and medical leave he or she takes after the initial
                unpaid period. The Department believes such ``reasonable expectation''
                is best evidenced by an agreement between the employer and employee at
                the time of hiring. Thus, Sec. 826.21(b)(2)(ii) explains the number of
                hours per day used to compute pay for an employee with a varying
                schedule who has been employed for less than six months is equal to the
                number of hours that the employee and the employer agreed at the time
                of hiring that the employee would be expected to work, on average, each
                workday. The agreement could have expressed the average number of hours
                over any time period--e.g., each week, month, or year--so long as that
                daily average could be extrapolated. In the absence of such an
                agreement, the Department believes that the actual average number of
                hours the employee was scheduled to work each workday evinces ``the
                reasonable expectation . . . of the average number of hours per day
                that the employee would normally be scheduled to work.'' Accordingly,
                Sec. 826.21(b)(2)(ii) further states that, in the absence of an
                agreement regarding the expected number of hours worked each day, the
                employer should use ``the average number of hours per workday that the
                employee was scheduled to work over the entire period of employment,
                including hours for which the employee took leave of any type'' to
                compute the amount of pay for an employee with a varying schedule who
                [[Page 19333]]
                has been employed for fewer than six months.
                 The Department recognizes that the two-week initial unpaid period
                of expanded family and medical leave under Sec. 826.60 is different
                from the ten-day unpaid period set forth in section 110(b)(1)(A) of the
                FMLA, as amended by the EFMLEA. This deviation is necessary to ensure
                that expanded family and medical leave provided under the EFMLEA and
                paid sick leave provided under the EPSLA work together--as Congress
                intended--to permit an employee to have a continuous income stream
                while taking FFCRA paid leave to care for his or her child whose school
                or place of care is closed, or whose child care provider is
                unavailable, for a COVID-19 related reason.
                 The EFMLEA provides that, during the unpaid period of expanded
                family and medical leave, an employee may receive pay by using other
                paid leave to which he or she may be entitled, including paid sick
                leave provided by the EPSLA. Paid sick leave may be used for the same
                reason as expanded family and medical leave, i.e., to care for a child
                whose school or place of care is closed, or whose child care provider
                is unavailable, for a COVID-19 related reason. And the amount of pay
                per hour of paid sick leave is guaranteed to be at least as much as the
                amount of pay per hour for paid expanded family and medical leave,
                i.e., two-thirds of the employee's regular rate, up to $200 per day.
                Furthermore, the entitlement to paid sick leave of an employee with a
                regular work schedule, i.e., eight hours each day for five days for a
                total of 40 hours each workweek--is the same as the ten-day period of
                unpaid expanded family and medical leave. Such an employee is entitled
                to 80 hours of paid sick leave, which provides pay at two-thirds of the
                employee's regular rate, as defined in Sec. 826.25, for ten workdays.
                If the employee were concurrently taking expanded family and medical
                leave, he or she would be able to take paid expanded family and medical
                leave at two-thirds the regular rate as soon as the 80 hours of paid
                sick leave runs out. Thus, paid sick leave and expanded family and
                medical leave are designed to work in tandem to provide continuous
                income for an employee to care for his or her child whose school or
                place of care is closed, or whose child care provider is unavailable,
                for a COVID-19 related reason. Put another way, the reason for an
                unpaid initial period of expanded family and medical leave is because
                an eligible employee already may concurrently use paid sick leave for
                the same reason and get paid at the same rate. The unpaid period is
                therefore intended to ensure that the employee has sufficient leave for
                a constant stream of income at two-thirds the regular rate, up to $200
                per day, while taking care of his or her child, but not more paid leave
                than necessary for that purpose.
                 As explained above, a ten-day period of unpaid expanded family and
                medical leave satisfies these purposes for an employee who works a
                regular 40-hour week. But the twin purposes of providing sufficient,
                yet not excessive, paid leave are not satisfied with respect to
                employees who work unconventional hours. For instance, consider an
                employee who works twelve hours each day for three days each workweek,
                or a total of 36 hours each workweek. This employee would be entitled
                to 72 hours of paid sick leave under the EPSLA to care for his or her
                child, which lasts for two workweeks. The employee, however, would not
                be able to take paid expanded family and medical leave at the end of
                two workweeks time because he would have taken only six workdays of
                such leave, and the ten-day period of unpaid leave would still be in
                effect. In order to have a continuous income stream until the ten-day
                unpaid period of expanded family and medical leave expired, the
                employee would need an additional 48 hours of paid sick leave.
                 As another example, consider a second employee who works six hours
                each day for six days each workweek, also for a total of 36 hours each
                workweek. The second employee would likewise be entitled to 72 hours of
                paid sick leave under the EPSLA to care for his or her child, which
                lasts for two workweeks or twelve workdays. The period of unpaid
                expanded family and medical leave would expire after ten workdays--two
                workdays before the second employee runs out of paid sick leave. The
                second employee may transition from paid sick leave to expanded family
                and medical leave after ten workdays, leaving two days of paid sick
                leave unused. In other words, the second employee would have two more
                days of paid leave than necessary to have a continuous income stream at
                two-thirds the regular rate while caring for his or her child.
                 In short, there is inconsistency between the provisions for
                expanded family and medical leave under the EFMLEA and paid sick leave
                under the EPSLA with respect to the first employee because he or she
                would be 48 hours short of being able to have continuous income. And
                there is inconsistency between the two Acts with respect to the second
                employee because he or she would have more hours of leave than needed
                for that purpose. Accordingly, pursuant to the Secretary's authority to
                issue regulations ``to ensure consistency'' between the two types of
                paid leave under the FFCRA, Sec. 826.24 states that the unpaid period
                for expanded family and medical leave lasts for two weeks rather than
                ten days.\3\
                ---------------------------------------------------------------------------
                 \3\ As a practical matter, the unpaid period for employees who
                work regular Monday-through-Friday schedules would still be ten days
                because that is the number of days they would work in two weeks.
                ---------------------------------------------------------------------------
                 In subsection (d), we made clear that despite the cap on pay, an
                employee may elect to use, or an employer may require that an employee
                take leave under the employer's policies that would be available to the
                employee to care for a child, such as vacation or personal leave or
                paid time off, concurrently with expanded family and medical leave, and
                the employer must pay the employee a full day's pay for that day.
                 Section 826.25 explains how to calculate the regular rate that is
                used to determine the amount an employer must pay an eligible employee
                who takes paid sick leave or expanded family and medical leave (after
                the initial two-week unpaid period). An employee's regular rate is
                computed for each workweek as defined under section 7(e) of the FLSA,
                as ``all [non-overtime] remuneration for employment'' paid to the
                employee except for eight statutory exclusions, divided by the number
                of hours worked in that workweek. See 29 U.S.C. 207(e); see also Bay
                Ridge Operating Co. v. Aaron, 334 U.S. 446, 458 (1948) (stating that
                the ``regular rate must be computed by dividing the total number of
                hours worked into the total [non-overtime] compensation received'').
                 The Department's regulations at 29 CFR parts 531 and 778 explain
                how to calculate the regular rate in different circumstances. For
                example, the Department uses the computation of an employee's regular
                rate with respect to tips in Sec. 531.60. Moreover, the Department
                clarifies how to compute an employee's regular rate under different
                compensation arrangements, including commissions and piece rates, at
                Sec. Sec. 778.110-.122, and explains what types of compensation are
                excludable from the regular rate, at Sec. Sec. 778.200-.225. The
                regular rate used to determine the amount of pay due an employee who
                takes paid sick leave or expanded family and medical leave must be
                computed using the same methods as those described in 29 CFR parts 531
                and 778.
                [[Page 19334]]
                 The regular rate must also be computed on a workweek to workweek
                basis. See, e.g., Sec. 778.104 (``Each workweek stands alone'').
                Neither the EPSLA nor the EFMLEA, however, explains which workweek
                should be used to compute the regular rate that is the basis for
                determining the amount of pay for leave taken. The Department does not
                believe it would be appropriate to use the workweek in which an
                employee takes leave because an employee's hours worked, and therefore
                regular rate, in such a workweek is unlikely to be representative.
                Indeed, if the employee takes leave for the entire workweek, the
                regular rate would equal zero.
                 Instead, the Department believes the regular rate used to determine
                the amount of pay under the EPSLA and the EFMLEA should be
                representative of the employee's regular rate from week to week.
                Section 826.25 therefore requires an employer to use an average of the
                employee's regular rate over multiple workweeks.\4\ Such an average
                should be weighted by the number of hours worked each workweek. For
                example, consider an employee who receives $400 of non-excludable
                compensation in one week for working 40 hours and $200 of non-
                excludable compensation in the next week for working ten hours. The
                regular rate in the first week is $10 per hour ($400 / 40 hours), and
                the regular rate for the second week is $20 per hour ($200 / 10 hours).
                The weighted average, however, is not computed by averaging $10 per
                hour and $20 per hour (which would be $15 per hour). Rather, it is
                computed by adding up all compensation over the relevant period (here,
                two workweeks), which is $600, and then dividing that sum by all hours
                worked over the same period, which is 50 hours. Thus, the weighted
                average regular rate over this two-week period is $12 per hour ($600 /
                50 hours).
                ---------------------------------------------------------------------------
                 \4\ The Department notes that Sec. 778.104 states that the FLSA
                ``does not permit averaging of hours over 2 or more weeks'' for the
                purpose of computing the regular rate. But this prohibition against
                averaging applies when the regular rate is used for its purpose
                under the FLSA to compute overtime pay due. It does not apply when,
                as here, the regular rate is used as a metric for an employee's
                average hourly non-overtime wages.
                ---------------------------------------------------------------------------
                 To be representative, the period over which the regular rate is
                averaged should be substantially greater than the two workweeks used in
                the above example. The Department believes it would be appropriate to
                compute the average regular rate over the same period used by the EPSLA
                and the EFMLEA to compute the employee's average number of hours worked
                per day, i.e., a six-month period ending on the date on which the
                employee first takes paid sick leave or expanded family and medical
                leave. The Department has selected this six-month period because it is
                sufficiently representative under both the EPSLA and the EFMLEA. And it
                minimizes regulatory burden by allowing employers to use the same
                payroll and schedule records to compute both an employee's average
                number of hours worked per day and average regular rate. Of course,
                computing an average regular rate used to determine the amount of pay
                should be computed over a six-month period is not possible if the
                employee at issue has not been employed for at least six months. In
                such a case, the average regular rate should be computed over the
                entire term of the employment.
                C. Employee Eligibility for Leave Under the EPSLA and the EFMLEA
                 Section 826.30 sets out the criteria for an employee's eligibility
                to receive paid sick leave under the EPSLA and/or expanded family and
                medical leave under the EFMLEA, which have similar, but not identical,
                eligibility requirements for leave. This section also addresses when
                employers may elect to exclude certain otherwise-eligible employees
                from coverage under these Acts.
                 Sections 826.30(a) and (b) provide that all employees employed by a
                covered employer are eligible to take paid sick leave under the EPSLA
                regardless of their duration of employment, and all employees who have
                been employed by a covered employer for at least thirty calendar days
                are eligible to take expanded family and medical leave under the
                EFMLEA, subject to the exceptions described in Sec. Sec. 826.30(c)-(d)
                and .40(b).
                 Section 826.30(b)(1)(i) further explains that an employee is
                considered to have been employed for at least thirty calendar days for
                purposes of EFMLEA eligibility if the employer had the employee on its
                payroll for the thirty calendar days immediately prior to the day that
                the employee's leave would begin. For example, for an employee to be
                eligible to take leave under the EFMLEA on April 1, 2020, the employee
                must have been on the employer's payroll as of March 2, 2020. Section
                826.30(b)(1)(ii) provides that an employee who is laid off or otherwise
                terminated by an employer on or after March 1, 2020, is nevertheless
                also considered to have been employed for at least thirty calendar
                days, provided the employer rehires or otherwise reemploys the employee
                on or before December 31, 2020, and the employee had been on the
                employer's payroll for thirty or more of the sixty calendar days prior
                to the date the employee was laid off or otherwise terminated. ``For
                example, an employee who was originally hired by an employer on January
                15, 2020, but laid off on March 14, 2020, would be eligible for leave
                under the EFMLEA and the EPSLA, if the same employer rehired the
                employee on October 1, 2020.''
                 The EFMLEA and the EPSLA both provide that an employer may exclude
                employees who are health care providers or emergency responders from
                leave requirements under the Acts. Section 826.30(c) reiterates this
                option and defines which employees are ``health care providers'' or
                ``emergency responders'' whom employers may exclude from eligibility
                for the EPSLA and the EFMLEA's leave requirements. An employer's
                exercise of this option does not impact an employee's earned or accrued
                sick, personal, vacation, or other employer-provided leave under the
                employer's established policies. Further, an employer's exercise of
                this option does not authorize an employer to prevent an employee who
                is a health care provider or emergency responder from taking earned or
                accrued leave in accordance with established employer policies. Because
                an employer is not required to exercise this option, if an employer
                does not elect to exclude an otherwise-eligible health care provider or
                emergency responder from taking paid leave under the EPSLA or the
                EFMLEA, such leave is subject to all other requirements of those laws
                and this Part, and should be treated in the same manner for purposes of
                the tax credit created by the FFCRA. To minimize the spread of COVID-
                19, the Department encourages employers to be judicious when using this
                definition to exempt health care providers and emergency responders
                from the provisions of the FFCRA.
                 The Department recognizes that health care providers whom an
                employer may exempt pursuant to sections 3105 and 5102(a) of the FFCRA
                is broader than the definition of health care provider under 29 CFR
                825.102. Section 5110(4) of the FFCRA adopts the FMLA definition of
                ``health care providers,'' which includes licensed doctors of medicine
                or osteopathy and ``any other person determined by the Secretary to be
                capable of providing health care services.'' 29 U.S.C. 2611(6). The
                Department defined ``health care provider'' narrowly in Sec. 825.102
                to mean medical professionals who are capable of diagnosing serious
                health conditions in light of the FMLA's requirement for such health
                care
                [[Page 19335]]
                providers to issue certifications regarding the nature and probable
                duration of serious health conditions. See 29 U.S.C. 2613; see also 58
                FR 31800 (``Because health care providers will need to indicate their
                diagnosis in health care certificates, such a broad definition was
                considered inappropriate.'').
                 The term ``health care provider'' as used in sections 3105 and
                5102(a) of the FFCRA, however, is not limited to diagnosing medical
                professionals. Rather, such health care providers include any
                individual who is capable of providing health care services necessary
                to combat the COVID-19 public health emergency. Such individuals
                include not only medical professionals, but also other workers who are
                needed to keep hospitals and similar health care facilities well
                supplied and operational. They further include, for example, workers
                who are involved in research, development, and production of equipment,
                drugs, vaccines, and other items needed to combat the COVID-19 public
                health emergency. Accordingly, the Department is adopting a definition
                of ``health care provider'' that is broader than the diagnosing medical
                professionals under Sec. 825.102 for the limited purpose of
                identifying employees whom an employer may exclude under sections 3105
                and 5102(a) of the FFCRA. The definition of health care provider under
                Sec. 825.102 continues to apply for other purposes of the FFCRA, such
                as, for instance, identifying health care providers who may advise an
                employee to self-quarantine for COVID-19 related reasons under section
                5102(a)(2).
                 The authority for employers to exempt emergency responders is
                reflective of a balance struck by the FFCRA. On the one hand, the FFCRA
                provides for paid sick leave and expanded family and medical leave so
                employees will not be forced to choose between their paychecks and the
                individual and public health measures necessary to combat COVID-19. On
                the other hand, providing paid sick leave or expanded family and
                medical leave does not come at the expense of fully staffing the
                necessary functions of society, including the functions of emergency
                responders. The FFRCA should be read to complement--and not detract
                from--the work being done on the front lines to treat COVID-19
                patients, prevent the spread of COVID-19, and simultaneously keep
                Americans safe and with access to essential services. Therefore, the
                Department interprets ``emergency responder'' broadly.
                 The specific parameters of the Department's definition of
                ``emergency responder'' derive from consultation of various statutory
                and regulatory definitions and from the consideration of input provided
                to the Department by various stakeholders and public officials. The
                Department endeavored to include those categories of employees who (1)
                interact with and aid individuals with physical or mental health
                issues, including those who are or may be suffering from COVID-19; (2)
                ensure the welfare and safety of our communities and of our Nation; (3)
                have specialized training relevant to emergency response; and (4)
                provide essential services relevant to the American people's health and
                wellbeing. While the Department endeavored to identify these categories
                of workers, it was cognizant that no list could be fully inclusive or
                account for the differing needs of specific communities. Therefore, the
                definition allows for the highest official of a state or territory to
                identify other categories of emergency responders, as necessary.
                 Section 826.30(d) explains that the CARES Act grants authority to
                the Director of OMB to exclude, for good cause, certain federal
                government employers from eligibility to take paid sick leave or
                expanded family and medical leave. As to the EFMLEA, the Director of
                OMB may exclude certain categories of United States Executive Branch
                employees from expanded family and medical leave. As to the EPSLA, the
                Director of OMB may exclude certain categories of federal government
                employees if they are covered by Title II of the FMLA, occupy a
                position in the civil service (as defined in 5 U.S.C. 2101(1)), and/or
                are employees of a United States Executive Agency (as defined in 5
                U.S.C. 105), which includes employees of the U.S. Postal Service and
                the U.S. Postal and Regulatory Commission.
                D. Employer Coverage Under the EPSLA and the EFMLEA
                 Section 826.40 addresses which employers are covered by the EPSLA
                and the EFMLEA, that is, which employers must provide paid leave to
                employees as described in those Acts.
                 Section 826.40(a) explains which private employers must provide
                paid sick leave and expanded family and medical leave to their
                employees. Specifically, it explains that, subject to the exemption
                described in Sec. 826.40(b), all private employers that employ fewer
                than 500 employees at the time an employee would take leave must comply
                with the EPSLA and the EFMLEA.
                 This determination is dependent on the number of employees at the
                time an employee would take leave. For example, if an employer has 450
                employees on April 20, 2020, and an employee is unable to work starting
                on that date because a health care provider has advised that employee
                to self-quarantine because of concerns related to COVID-19, the
                employer must provide paid sick leave to that employee. If, however,
                the employer hires 75 new employees between April 21, 2020, and August
                3, 2020, such that the employer employs 525 employees as of August 3,
                2020, the employer would not be required to provide paid sick leave to
                a different employee who is unable to work for the same reason
                beginning on August 3, 2020.
                 Section 826.40(a) also addresses how to determine who counts as an
                employee for this purpose, including discussing categories of workers
                who do (and do not) count toward the 500-employee threshold. In making
                this determination, the employer should include full-time and part-time
                employees, employees on leave, temporary employees who are jointly
                employed by the employer and another employer, and day laborers
                supplied by a temporary placement agency. Independent contractors that
                provide services for an employer do not count towards the 500-employee
                threshold. Nor do employees count who have been laid off or furloughed
                and have not subsequently been reemployed. Furthermore, employees must
                be employed within the United States. For example, if an employer
                employs 1,000 employees in North America, but only 250 are employed in
                a U.S. State, the District of Columbia, or a territory or possession of
                the United States, that employer will be considered to have 250
                employees and is thus subject to the FFCRA.
                 Section 826.40(a) further explains that joint or integrated
                employers must combine employees in determining the number of employees
                they employ for this purpose. The FLSA's test for joint employer status
                applies in determining who is a joint employer for purposes of
                coverage, and the FMLA's test for integrated employer status applies in
                determining who is an integrated employer, under both the EPSLA and the
                EFMLEA.
                 Section 826.40(a) does not distinguish between for-profit and non-
                profit entities; employers of both types must comply with the FFCRA if
                they otherwise meet the requirements for coverage.
                 Section 826.40(b) describes the small employer exemption pursuant
                to the
                [[Page 19336]]
                Secretary's regulatory authority to exempt small private employers with
                fewer than 50 employees from having to provide an employee with paid
                sick leave and expanded family and medical leave to care for his or her
                child whose school or place of care is closed, or child care provider
                is unavailable, when such leave would jeopardize the viability of the
                business as a going concern. The American Institute of Certified Public
                Accountants (AICPA) allows companies to use the ``ongoing concern
                assumption'' to defer some of its prepaid expenses until future
                accounting periods because the entity can continue in business for the
                foreseeable future without the intention nor the necessity to
                liquidate, cease trading, or seek protection from creditors pursuant to
                laws or regulations. In other words, the business is considered to
                remain a viable business for the foreseeable future. There is no
                formula provided by the AICPA to determine the viability of a business
                as a going concern, but rather the standard considers conditions or
                events in the aggregate.
                 The Department believes it is necessary to set forth objective
                criteria for when a small business with fewer than 50 employees can
                deny an employee paid sick leave or expanded family and medical leave
                to care for the employee's son or daughter whose school or place of
                care is closed, or child care provider is unavailable, for COVID-19
                related reasons. To that end, section 826.40(b)(1) explains that a
                small employer is exempt from the requirement to provide such leave
                when: (1) Such leave would cause the small employer's expenses and
                financial obligations to exceed available business revenue and cause
                the small employer to cease operating at a minimal capacity; (2) the
                absence of the employee or employees requesting such leave would pose a
                substantial risk to the financial health or operational capacity of the
                small employer because of their specialized skills, knowledge of the
                business, or responsibilities; or (3) the small employer cannot find
                enough other workers who are able, willing, and qualified, and who will
                be available at the time and place needed, to perform the labor or
                services the employee or employees requesting leave provide, and these
                labor or services are needed for the small employer to operate at a
                minimal capacity. For reasons (1), (2), and (3), the employer may deny
                paid sick leave or expanded family and medical leave only to those
                otherwise eligible employees whose absence would cause the small
                employer's expenses and financial obligations to exceed available
                business revenue, pose a substantial risk, or prevent the small
                employer from operating at minimum capacity, respectively.
                 Section 826.40(b)(2) explains that if a small employer decides to
                deny paid sick leave or expanded family and medical leave to an
                employee or employees whose child's school or place of care is closed,
                or whose child care provider is unavailable, the small employer must
                document the facts and circumstances that meet the criteria set forth
                in Sec. 826.40(b)(1) to justify such denial. The employer should not
                send such material or documentation to the Department, but rather
                should retain such records for its own files.
                 In exercising its authority to exempt certain employers with fewer
                than 50 employees, the Department balanced two potentially competing
                objectives of the FFCRA. On the one hand, the leave afforded by the
                FFCRA was designed to be widely available to employees to assist them
                navigating the social and economic impacts of COVID-19 as well as
                public and private efforts to contain and slow the spread of the virus.
                On the other hand, the Department recognizes that FFCRA leave
                entitlements have little value if they cause an employer to go out of
                business and, in so doing, deny employees not only leave but also jobs.
                In Sec. 826.40(b), the Department attempted to extend the leave
                benefits as broadly as practicable, but not in circumstances that would
                significantly increase the likelihood that small businesses would be
                forced to close. The Department rejected alternative arrangements that
                excessively favored either the extension of leave or exclusion of small
                businesses or which imposed compliance requirements that were overly
                burdensome, particularly in economic conditions resulting from COVID-
                19.
                 Section 826.40(c) explains which public employers must comply with
                the EPSLA and the EFMLEA. It uses the term ``Public Agency,'' which as
                explained in the definitions section, has the same meaning as in
                section 203(x) of the FLSA. Specifically, public agency means the
                Government of the United States; the government of a State or political
                subdivision of a State; or an agency of the United States (including
                the United States Postal Service and Postal Regulatory Commission), a
                State, or a political subdivision of a State; or any interstate
                governmental agency. All covered public agencies must comply with both
                the EPSLA and the EFMLEA regardless of the number of employees they
                employ, although such employers may exclude employees who are health
                care providers or emergency responders as described in Sec. 826.30(c).
                 Section 826.40(c) provides further information about which parts of
                the Federal government must comply with these Acts. Because the EFMLEA
                only amends Title I of the FMLA, only employers of employees covered by
                Title I of the FMLA are subject to the requirements of the EFMLEA.
                Employers of federal employees covered by Title II of the FMLA are not
                subject to requirements of the EFMLEA.
                 Section 826.40(c) provides certain clarifications as to the EPSLA's
                and the EFMLEA's applicability to public employers. It explains that
                all public agencies must provide their eligible employees with paid
                sick leave, subject to the exceptions set forth in Sec. 826.30(c)-(d).
                In general, public agencies must also provide their eligible employees
                with expanded family and medical leave, subject to the exceptions and
                limitations set forth in Sec. 826.30(b)-(d). However, as Sec.
                826.40(c) clarifies, only certain employees of the United States or
                agencies of the United States (``federal employees'') are potentially
                eligible to take expanded family and medical leave. Those who are
                potentially eligible are the federal employees covered by Title I of
                the FMLA. Those who are not potentially eligible for expanded family
                and medical leave are the federal employees whose FMLA coverage is
                found elsewhere, including in Title II of the FMLA (codified in Title 5
                of the U.S. Code). Section 826.40(c)(i)-(viii) sets forth specific
                examples of federal employees covered by Title I of the FMLA and
                therefore potentially eligible for expanded family and medical leave.
                E. Intermittent Leave
                 Section 826.50 outlines the circumstances and conditions under
                which paid sick leave or expanded family and medical leave may be taken
                intermittently under the FFCRA. In this section, the Department has
                imported and applied to the FFCRA certain concepts of intermittent
                leave from its FMLA regulations. However, it has also modified these
                concepts and added additional limitations on the use of intermittent
                leave in circumstances where the Department believes it is incompatible
                with Congress' objectives to slow the spread of COVID-19.
                 One basic condition applies to all employees who seek to take their
                paid sick leave or expanded family and medical leave intermittently--
                they and their employer must agree. Absent agreement, no leave under
                the FFCRA may be taken intermittently. Subsection (a) does not require
                an employer and
                [[Page 19337]]
                employee to reduce to writing or similarly memorialize their agreement.
                But, in the absence of a written agreement, there must be a clear and
                mutual understanding between the parties that the employee may take
                intermittent paid sick leave or intermittent expanded family and
                medical leave, or both. Additionally, where an employer and employee
                agree that the latter may take paid sick leave or expanded family and
                medical leave intermittently, they also must agree on the increments of
                time in which leave may be taken, as explained in subsections (b)(1)
                and (c).
                 Section 826.50(c) provides that if an employer directs or allows an
                employee to telework, subject to an agreement between the employer and
                employee, the employee may take paid sick leave or expanded family and
                medical leave intermittently, in any agreed increment of time, while
                the employee is teleworking. This section intentionally affords
                teleworking employees and employers broad flexibility under the FFCRA
                to agree on arrangements that balance the needs of each teleworking
                employee with the needs of the employer's business. Moreover, as
                teleworking employees present no risk of spreading COVID-19 to work
                colleagues, intermittent leave for any qualifying reason furthers the
                statute's objective to contain the virus.
                 In contrast, employees who continue to report to an employer's
                worksite may only take paid sick leave or expanded family and medical
                leave intermittently and in any increment--subject to the employer and
                employee's agreement--in circumstances where there is a minimal risk
                that the employee will spread COVID-19 to other employees at an
                employer's worksite. Therefore, subsection (b)(1) allows an employer
                and employee who reports to an employer's worksite to agree that the
                employee may take paid sick leave or expanded family and medical leave
                intermittently solely to care for the employee's son or daughter whose
                school or place of care is closed, or whose child care provider is
                unavailable, because of reasons related to COVID-19. In this context,
                the absence of confirmed or suspected COVID-19 in the employee's
                household reduces the risk that the employee will spread COVID-19 by
                reporting to the employer's worksite while taking intermittent paid
                leave. This is not true, however, when the employee takes paid sick
                leave for other qualifying reasons.
                 Subsection (b)(2) prohibits employees who report to an employer's
                worksite from taking paid sick leave intermittently, notwithstanding
                any agreement between the employer and employee to the contrary, if the
                leave is taken because the employee: (1) Is subject to a Federal,
                State, or local quarantine or isolation order related to COVID-19; (2)
                has been advised by a health care provider to self-quarantine due to
                concerns related to COVID-19; (3) is experiencing symptoms of COVID-19
                and is taking leave to obtain a medical diagnosis; (4) is caring for an
                individual who either is subject to a quarantine or isolation order
                related to COVID-19 or has been advised by a health care provider to
                self-quarantine due to concerns related to COVID-19; or (5) is
                experiencing any other substantially similar condition specified by the
                Secretary of Health and Human Services. As the Department explains in
                subsection (b)(2), where paid leave is taken for these reasons, ``the
                employee is, may be, or is reasonably likely to become, sick with
                COVID-19, or is exposed to someone who is, may be, or is reasonably
                likely to become, sick with COVID-19.'' In these situations, the
                employee may not take intermittent leave due to the unacceptably high
                risk that the employee might spread COVID-19 to other employees when
                reporting to the employer's worksite. Once such an employee begins
                taking paid sick leave for one or more of these qualifying reasons, the
                employee must continue to take paid sick leave each day until the
                employee either uses the full amount of paid sick leave or no longer
                has a qualifying reason for taking paid sick leave. The Department
                believes that such a requirement furthers Congress' objective to slow
                the spread of COVID-19.
                 Finally, subsection (d) clarifies that where an employer and
                employee have agreed that FFCRA leave may be taken intermittently, only
                the amount of leave actually taken may be counted toward the employee's
                leave entitlements. This is consistent with the requirements for
                intermittent leave use under the FMLA and ensures that employees are
                able to use the full leave entitlement.
                F. Leave To Care for a Child Due to School or Place of Care Closure or
                Child Care Unavailability--Intersection Between the EPSLA and the
                EFMLEA
                 Both the EPSLA and the EFMLEA permit an employee to take paid leave
                when needed to care for his or her son or daughter whose school or
                place of care is closed, or child care provider is unavailable, due to
                COVID-19 related reasons. Section 826.60 sets forth how the
                requirements of the EFMLEA and the EPSLA interact when an employee
                qualifies for both types of leave.
                 Generally, when an employee qualifies for leave under both Acts, an
                employee may first use the two weeks of paid leave provided by the
                EPSLA. This use runs concurrent with the first two weeks of unpaid
                leave under the EFMLEA. Any remaining leave taken for this purpose is
                paid under the EFMLEA.
                 Section 826.60 further explains that where an employee has already
                taken some FMLA leave in the current twelve-month leave year as defined
                by 29 CFR 825.200(b), the maximum twelve weeks of EFMLEA leave is
                reduced by the amount of the FMLA leave entitlement taken in that year.
                If an employee has exhausted his or her twelve workweeks of FMLA or
                EFMLEA leave, he or she may still take EPSLA leave for a COVID-19
                qualifying reason.
                 Section 826.60(b) addresses an employee's prior use of emergency
                paid sick leave, which does not prevent the employee from taking
                expanded family and medical leave. For example, if the employee takes
                two weeks of paid sick leave for a qualifying reason under EPSLA
                section 5102(a)(1)-(4) and (6), the employee has exhausted the paid
                sick leave available to the employee under the EPSLA and may not take
                additional paid sick leave for any qualifying reason. If the employee
                then needs to take leave under the EFMLEA, the employee may do so, but
                the first ten days of expanded family and medical leave may be unpaid.
                The employee may, however, choose to substitute earned or accrued paid
                leave, as provided by the employer's established policies.
                [[Page 19338]]
                G. Leave To Care for a Child Due to School or Place of Care Closure or
                Child Care Unavailability--Intersection Between the EFMLEA and the FMLA
                 Section 826.70 addresses the interaction between the new
                entitlement to take FMLA leave to care for an employee's child due to
                school or place of care closure or child care unavailability under the
                EFMLEA and an employee's entitlement to take FMLA leave for other
                reasons, such as bonding with a newborn or newly placed child, for the
                employee's own serious health condition, or to care for a covered
                family member with a serious health condition. The EFMLEA amended the
                FMLA to add a sixth reason to take the twelve-week FMLA entitlement: To
                care for an employee's son or daughter whose school or place of care is
                closed or child care provider is unavailable due to COVID-19 related
                reasons.
                 Eligibility requirements for employees to take expanded family and
                medical leave under the EFMLEA differ from standard FMLA leave. Not all
                employees who are eligible to take expanded family and medical leave
                will be eligible to take FMLA leave for other reasons. Employees only
                need to have been employed for 30 calendar days in order to be eligible
                for expanded family and medical leave to care for their child due to
                school or place of care closure or child care unavailability under the
                EFMLEA. In contrast, to be eligible to take FMLA leave for other
                reasons, employees generally need to have worked for the employer for
                at least twelve months, have 1,250 hours of service in the twelve-month
                period prior to the leave, and work at a location where the employer
                has at least 50 employees within 75 miles.
                 Employer coverage also differs under the EFMLEA and the FMLA. Most
                significantly, the EFMLEA applies to all employers with fewer than 500
                employees, while the FMLA generally does not apply to employers with
                fewer than 50 employees. Further, employers of health care providers
                and emergency responders may exclude such employees from the EFMLEA's
                leave requirements, but not the FMLA's.
                 An employee's ability to take EFMLEA leave depends on his or her
                use of FMLA leave during the 12-month FMLA leave year pursuant to 29
                CFR 825.200(b) for a reason unrelated to COVID-19. If an employee has
                already taken such leave, the employee may not be able to take the full
                twelve weeks of expanded family and medical leave under the EFMLEA. For
                example, if the employer uses the calendar year as the twelve-month
                FMLA leave year and an employee took three weeks of leave in January
                2020 for the employee's own serious health condition, the employee
                would only have nine weeks of expanded family and medical leave
                available. Additionally, employees are limited to a total of twelve
                weeks of expanded family and medical leave under the EFMLEA, even if
                the applicable time period (April 1 to December 31, 2020) spans two
                twelve-month leave periods under the FMLA. Finally, for employees who
                are eligible to take leave under the FMLA and the EFMLEA, and who take
                leave to care for a service member with a serious injury or illness,
                the total amount of leave available to the employee will be calculated
                as set forth in 29 CFR 825.127(e).
                 As explained in the above discussion of Sec. 826.60, the first two
                weeks of expanded family and medical leave may be unpaid and the
                employee may substitute paid sick leave under the EPSLA or employer-
                provided earned and accrued paid leave during this period. After the
                first two weeks of leave, expanded family and medical leave is paid at
                two-thirds the employee's regular rate of pay, up to $200 per day. See
                Sec. 826.24. Because this period of expanded family and medical leave
                is paid, the FMLA provision for substitution of the employee's accrued
                paid leave is inapplicable, and neither the employee nor the employer
                may require the substitution of paid leave. However, employers and
                employees may agree, where Federal or state law permits, to have
                accrued paid leave supplement the two-thirds pay under the EFMLEA so
                that the employee receives the full amount of their normal pay. Federal
                agencies generally lack authority to provide for such a supplement.
                H. Employer Notice
                 Section 826.80 addresses the FFCRA requirement that employers post
                and keep posted a notice of the law's requirements. As required by the
                FFCRA, the Department made a model notice available on March 25, 2020,
                and employers may, free of charge, download the poster (WHD1422 REV 03/
                20) from the WHD website at https://www.dol.gov/whd. In addition to
                posting the notice in a conspicuous place where employees or job
                applicants at a worksite may view it, an employer may distribute the
                notice to employees by email, or post the required notice
                electronically on an employee information website to satisfy the FFCRA
                requirement. An employer may also directly mail the required notice to
                any employees who are not able to access information at the worksite,
                through email, or online. An employer may post or distribute the
                required information provided in the model notice in a different
                format, as long as the content is accurate and readable. Although the
                FFCRA does not require employers to provide a translated notice to
                employees, the Department has issued a Spanish language version of the
                poster. For employers who are covered by the EFMLEA but are not covered
                by the other provisions of the FMLA, posting of this FFCRA notice
                satisfies their FMLA general notice obligation. See 29 U.S.C. 2619; 29
                CFR 825.300.
                 The Department is aware that employers newly affected by the EFMLEA
                requirements of the FFCRA will not have established policies and
                practices for administering FMLA leave. In consideration of these
                employers, the number of employees who will be eligible to use the FMLA
                for the first time for a limited period of time, and interruptions to
                normal business operations from emergency conditions, the Department
                did not adopt in the FFCRA employer notice regulations or employer
                ``specific notice'' obligations that are required in the FMLA
                regulations. 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. However, an
                employer that has established practices for providing individual
                employees with specific notices compliant with the FMLA regulatory
                guidance at 29 CFR 825.300 may prefer to apply their existing practices
                to EFMLEA leave users.
                I. Employee Notice of Need for Leave
                 Section 826.90 addresses an employee's notice to his or her
                employer regarding the need to take leave. Section 826.90(a) explains
                that for paid sick leave or expanded family and medical leave to care
                for the employee's son or daughter whose school or place of care is
                closed, or whose child care provider is unavailable, due to COVID-19
                related reasons, an employer may require employees to follow reasonable
                notice procedures as soon as practicable after the first workday or
                portion of a workday for which an employee receives paid sick leave in
                order to continue to receive such leave. Sections 826.90(b) and (c)
                explain that it will be reasonable for an employer to require notice as
                soon as practicable after the first workday is missed, and to require
                that employees provide oral notice and sufficient information for an
                employer
                [[Page 19339]]
                to determine whether the requested leave is covered by the FFCRA. The
                employer may not require the notice to include documentation beyond
                what is allowed by Sec. 826.100.
                 Section 826.90(d) states that it is reasonable for the employer to
                require the employee to comply with the employer's usual notice
                procedures and requirements, absent unusual circumstances. If an
                employee fails to give proper notice, the employer should give him or
                her notice of the failure and an opportunity to provide the required
                documentation prior to denying the request for leave.
                J. Documentation of Need for Leave
                 An employee must provide his or her employer documentation in
                support of paid sick leave or expanded family and medical leave. As
                provided in Sec. 826.100, such documentation must include 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 depending on the
                COVID-19 qualifying reason for leave. An employee requesting paid sick
                leave under Sec. 826.20(a)(1)(i) must provide the name of the
                government entity that issued the quarantine or isolation order to
                which the employee is subject. An employee requesting paid sick leave
                under Sec. 826.20(a)(1)(ii) must provide the name of the health care
                provider who advised him or her to self-quarantine for COVID-19 related
                reasons. An employee requesting paid sick leave under Sec.
                826.20(a)(1)(iv) to care for an individual must provide either (1) the
                government entity that issued the quarantine or isolation order to
                which the individual is subject or (2) the name of the health care
                provider who advised the individual to self-quarantine, depending on
                the precise reason for the request. An employee requesting to take paid
                sick leave under Sec. 826.20(a)(1)(v) or expanded family and medical
                leave to care for his or her child must provide the following
                information: (1) The name of the child being care for; (2) the name of
                the school, place of care, or child care provider that closed or became
                unavailable due to COVID-19 reasons; and (3) a statement representing
                that no other suitable person is available to care for the child during
                the period of requested leave.
                 For leave taken under the FMLA for an employee's own serious health
                condition related to COVID-19, or to care for the employee's spouse,
                son, daughter, or parent with a serious health condition related to
                COVID-19, the normal FMLA certification requirements still apply. See
                29 CFR 825.306.
                K. Health Care Coverage
                 Section 826.110 explains that an employee who takes expanded family
                and medical leave or paid sick leave is entitled to continued coverage
                under the employer's group health plan on the same terms as if the
                employee did not take leave. See 29 U.S.C. 2614(c); see also 29 U.S.C.
                1182 and 26 CFR 54.9802-1(e)(2)(i); 29 CFR 2590.702(e)(2)(i) and 45 CFR
                146.121(e)(2)(i) (providing that an employer cannot establish a rule
                for group health plan eligibility or set any individual's premium or
                contribution rate based on whether an individual is actively at work,
                unless the employer treats employees who are absent from work on sick
                leave as being actively at work). This rule defines ``group health
                plan'' using the definition under the FMLA. See 29 CFR 825.102.
                Maintenance of individual health insurance policies purchased by an
                employee from an insurance provider, as described in 29 CFR 825.209(a),
                is the responsibility of the employee.
                 Section 826.110(b)-(g) explains what an employer must do to
                continue group health plan coverage on the same terms as if the
                employee did not take paid sick leave or expanded family and medical
                leave. These requirements are similar to the regulatory requirements
                for employers when employees take FMLA leave for other reasons. In
                particular, while an employee is taking paid sick leave or expanded
                family and medical leave, the employer must maintain the same group
                health plan benefits provided to an employee and his or her family
                members covered under the plan prior to taking leave--including medical
                care, surgical care, hospital care, dental care, eye care, mental
                health counseling, substance abuse treatment, and other benefit
                coverage. This requirement also applies to benefits provided through a
                supplement to a group health plan, whether or not the supplement is
                provided through a flexible spending account or other component of a
                cafeteria plan.
                 Likewise, if an employer provides a new health plan (including a
                new benefit package option) or benefits or changes health benefits or
                plans while an employee is taking paid sick leave or expanded family
                and medical leave, the employee is entitled to the new or changed plan/
                benefits to the same extent as if the employee was not on leave. The
                employer must give the employee notice of any opportunity to change
                plans or benefits, and if the employee requests the changed coverage it
                must be provided by the employer.
                 Employees in a group health plan who take paid sick leave or
                expanded family and medical leave remain responsible for paying the
                same portion of the plan premium that the employee paid prior to taking
                leave. If premiums are adjusted, the employee is required to pay the
                new employee premium contribution on the same terms as other employees.
                The employee's share of premiums must be paid by the method normally
                used during any paid leave; in many cases, this will be through a
                payroll deduction. For unpaid leave, or where the pay provided by the
                EFMLEA or the EPSLA is insufficient to cover the employee's premiums,
                the rule directs employers to 29 CFR 825.210(c), which specifies how
                employers can obtain payment. If an employee chooses not to retain
                group health plan coverage while taking paid sick leave or expanded
                family and medical leave, the employee is entitled upon returning from
                leave to be reinstated on the same terms as prior to taking the leave,
                including family member coverage.
                L. Multiemployer Plans
                 An employer that is a signatory to a multiemployer collective
                bargaining agreement may satisfy its obligations under the EFMLEA and
                the EPSLA by making contributions to a multiemployer fund, plan, or
                other program consistent with its bargaining obligations and its
                collective bargaining agreement. The contributions must be based on the
                amount of paid sick leave and expanded family and medical leave to
                which the employee is entitled under the applicable provisions of the
                FFCRA based on each employee's work under the multiemployer collective
                bargaining agreement. The fund, plan, or other program must allow
                employees to obtain their pay for the leave to which they are entitled
                under the FFRCA.
                 Alternatively, an employer that is part of a multiemployer
                collective bargaining agreement may choose to satisfy its obligations
                under the FFCRA by means other than through contribution to a plan,
                fund, or program, provided they are consistent with its bargaining
                obligations and collective bargaining agreement.
                M. Return to Work
                 Section 826.130 describes an employee's right to return to work
                after taking paid leave under the EPSLA or the EFMLEA. In most
                instances, an employee is entitled to be restored to
                [[Page 19340]]
                the same or an equivalent position upon return from paid sick leave or
                expanded family and medical leave in the same manner that an employee
                would be returned to work after FMLA leave. See the FMLA job
                restoration provisions at 29 CFR 825.214 and the FMLA equivalent
                position provisions at 29 CFR 825.215.
                 However, the new statute does not protect an employee from
                employment actions, such as layoffs, that would have affected the
                employee regardless of whether the leave was taken. The employer must
                be able to demonstrate that the employee would have been laid off even
                if he or she had not taken leave. This provision tracks the existing
                provision under the FMLA in 29 CFR 825.216. The employer has the same
                burden of proof to show that an employee would not otherwise have been
                employed at the time reinstatement is requested in order to deny
                restoration to employment.
                 The EFMLEA amendments to the FMLA specify that the FMLA's
                restoration provision in 29 U.S.C. 2614(a)(1) does not apply to an
                employer who has fewer than twenty-five employees if all four of the
                following conditions are met:
                 (a) The employee took leave to care for his or her son or daughter
                whose school or place of care was closed or whose child care provider
                was unavailable;
                 (b) The employee's position no longer exists due to economic or
                operating conditions that (i) affect employment and (ii) are caused by
                a public health emergency (i.e., due to COVID-19 related reasons)
                during the period of the employee's leave;
                 (c) The employer made reasonable efforts to restore the employee to
                the same or an equivalent position; and
                 (d) If the employer's reasonable efforts to restore the employee
                fail, the employer makes reasonable efforts for a period of time to
                contact the employee if an equivalent position becomes available. The
                period of time is specified to be one year beginning either on the date
                the leave related to COVID-19 reasons concludes or the date twelve
                weeks after the employee's leave began, whichever is earlier.
                 In addition, as these provisions amend the FMLA, the existing
                limitation to job restoration for ``key'' employees is applicable to
                leave taken under the EFMLEA. The FMLA's key employee regulations are
                in 29 CFR 825.217.
                N. Recordkeeping
                 Section 826.140 explains that an employer is required to retain all
                documentation provided pursuant to Sec. 826.100 for four years,
                regardless of whether leave was granted or denied. If an Employee
                provided oral statements to support his or her request for paid sick
                leave or expanded family and medical leave, the employer is required to
                document and retain such information for four years. If an employer
                denies an employee's request for leave pursuant to the small business
                exemption under Sec. 826.40(b), the employer must document its
                authorized officer's determination that the prerequisite criteria for
                that exemption are satisfied and retain such documentation for four
                years. Section 826.140 also explains what documents the employer should
                create and retain to support its claim for tax credits from the
                Internal Revenue Service (IRS). A more detailed explanation of how
                Employers may claim tax credits can be found at https://www.irs.gov/forms-pubs/about-form-7200 and https://www.irs.gov/pub/irs-drop/n-20-21.pdf.
                O. Prohibited Acts and Enforcement
                 Sections 826.150 and 826.151 describe certain acts that are
                prohibited under the EPSLA and the EFMLEA, as well as enforcement
                mechanisms.
                 Section 826.150(a) explains that, under the EPSLA, employers are
                prohibited from discharging, disciplining, or discriminating against
                any employee because the employee took paid sick leave, initiated a
                proceeding under or related to paid sick leave, or testified or is
                about to testify in such a proceeding.
                 Section 826.150(b) explains that an employer who violates the paid
                sick leave requirements is considered to have failed to pay the minimum
                wage required by section 6 of the FLSA, and an employer who violates
                the prohibition on discharge, discipline, or discrimination described
                in section 826.150(a) is considered to have violated section 15(a)(3)
                of the FLSA. See 29 U.S.C. 206, 215(a)(3). With respect to such
                violations, the relevant enforcement provisions of sections 16 and 17
                of the FLSA apply. See 29 U.S.C. 216, 217.
                 For instance, an employee may maintain, on behalf of the employee
                and any other similarly-situated employees, an action in any federal or
                state court of competent jurisdiction to recover an amount equal to the
                federal minimum wage for each hour of paid sick leave denied, an
                additional equal amount as liquidated damages, and an amount for costs
                and reasonable attorney's fees. Moreover, the Secretary may bring an
                action against an employer to recover an amount equal to the Federal
                minimum wage for each hour of paid sick leave denied, and an additional
                equal amount as liquidated damages, or to obtain an injunction against
                the employer. Finally, in the case of a repeated or willful violation,
                the employer shall also be subject to a civil penalty for each
                violation, and liable in an additional amount, as liquidated damages,
                equal to the minimum wage for each hour of paid sick leave denied.
                 Section 826.151(a) explains that, for purposes of the EFMLEA,
                employers are subject to the prohibitions that apply with respect to
                all FMLA leave, which are set forth at 29 U.S.C. 2615. Specifically,
                employers are prohibited from interfering with, restraining, or denying
                an employee's exercise of or attempt to exercise any right under the
                FMLA, including the EFMLEA; discriminating against an employee for
                opposing any practice made unlawful by the FMLA, including the EFMLEA;
                or interfering with proceedings initiated under the FMLA, including the
                EFMLEA.
                 Section 826.151(b) explains that, for purposes of the EFMLEA,
                employers are subject to the enforcement provisions set forth in
                section 107 of the FMLA, with one exception: an employee may not bring
                a private action against an employer under the EFMLEA if the employer,
                although subject to the EFMLEA, is not otherwise subject to the FMLA.
                See 29 U.S.C. 2617; 29 CFR 825.400. In other words, an employee can
                only bring an action against an employer under the EFMLEA if the
                employer has had 50 or more employees for each working day during each
                of twenty or more calendar workweeks in the current or preceding
                calendar year, as required by section 101(4)(A)(i) of the FMLA.
                 Section 826.152 provides that employees may file complaints
                alleging violations of the EPSLA and/or the EFMLEA with WHD.
                 Section 826.153 sets out the Secretary's investigative authority
                under the EPSLA and the EFMLEA. Under the EPSLA, the Secretary may
                investigate and gather data in the same manner as authorized by
                sections 9 and 11 of the FLSA. See 29 U.S.C. 209, 211. Under the
                EFMLEA, the Secretary may investigate and gather data in the same
                manner as authorized by sections 106(a) and (d) of the FMLA. See 29
                U.S.C. 2616(a), (d). The provisions authorize, among other things, the
                Secretary to enter a workplace and have access to, inspect, and copy
                documents, and/or require witness attendance and testimony, relating to
                any matter under investigation, from any person or entity being
                investigated or proceeded against,
                [[Page 19341]]
                at any stage of any proceeding or investigation, at any place in the
                United States. They also permit the Secretary to compel the production
                of relevant documents or testimony by subpoena as permitted by these
                provisions of law, including that in the event of any failure or
                refusal to comply with such a subpoena, the Secretary may obtain from
                any district court in the United States an order to compel production
                and/or testimony. Failure to obey such an order may be enforced through
                contempt proceedings.
                P. Effect of Other Laws, Employer Practices, and Collective Bargaining
                Agreements
                 Section 826.160 discusses the effect of taking paid sick leave and
                expanded family and medical leave on other rights, benefits, employer
                practices, and collective bargaining agreements. The statutory
                provisions underlying this section appear in the EPSLA.
                 Section 826.160(a)(1) explains that an employee's entitlement to,
                or actual use of, paid sick leave is not grounds for diminishment,
                reduction, or elimination of any other right or benefit to which the
                employee is entitled under any other federal, state, or local law,
                under any collective bargaining agreement, or under any employer policy
                that existed prior to April 1, 2020. See 29 U.S.C. 2651(b), 2652. Paid
                sick leave is in addition to, and not a substitute for, other sources
                of leave which the employee had already accrued, was already entitled
                to, or had already used, before the EPSLA became operational on April
                1, 2020, and effective on April 2, 2020. Therefore, neither eligibility
                for, nor use of, paid sick leave may count against an employee's
                balance or accrual of any other source or type of leave.
                 Section 826.160(a)(2) explains that an employer may not deny an
                employee paid sick leave or expanded family and medical leave on the
                grounds that the employee has already taken another type of leave or
                taken leave from another source, including leave taken for reasons
                related to COVID-19. Regardless of how much other leave an employee has
                taken up to the date he or she requests paid sick leave or expanded
                family and medical leave, the employer must permit the employee to
                immediately take any and all paid sick leave or expanded family and
                medical leave to which he or she is entitled and eligible under the
                EPSLA and the EFMLEA. However, the preceding analysis does not apply to
                or affect the FMLA's twelve workweeks within a twelve-month period cap.
                 The Department interprets ``existing employer policy'' in section
                5107(1)(C) of the FFCRA to include a COVID-19 related offering of paid
                leave that the employer voluntarily issued prior to April 1, 2020, and
                under which employees were offered more paid leave than under the
                employer's standard or current policy. The Department acknowledges that
                some employers voluntarily offered and provided such leave to help
                their employees in this time of emergency. Nonetheless, the FFCRA still
                requires those employers to provide the entirety of the paid sick leave
                and expanded family and medical leave to which its employees are
                eligible, regardless of whether an employee took the additional paid
                leave the employer voluntarily offered. Doing so is necessary to ensure
                all eligible employees receive the full extent of paid sick leave and
                expanded family and medical leave to which they are entitled under the
                EPSLA and the EFMLEA. However, an employer may prospectively terminate
                such a voluntary additional paid leave offering as of April 1, 2020, or
                thereafter, provided that the employer had not already amended its
                leave policy to reflect the voluntary offering. This means the employer
                must pay employees for leave already taken under such an offering
                before it is terminated, but the employer need not continue the
                offering in light of the FFCRA taking effect.
                 Finally, the Department clarifies that employees do not have any
                right or entitlement to use paid sick leave or expanded family and
                medical leave retroactively, meaning they have no right or entitlement
                to be paid through paid sick leave or expanded family and medical leave
                for any unpaid or partially paid leave taken before April 1, 2020.
                 Section 826.160(b) explains the sequencing of paid sick leave with
                other types of leave. Pursuant to section 5102 of the FFRCA, an
                employee may choose to use paid sick leave prior to using any other
                type of paid leave to which he or she is entitled under any other
                Federal, State, or local law; collective bargaining agreement; or
                employer policy that existed prior to April 1, 2020. As this decision
                is at the employee's discretion, Sec. 826.160(b)(2) clarifies that no
                employer shall require, coerce, or unduly influence an employee to use
                another source of paid leave before taking paid sick leave. Of course,
                an employer may not require or influence an employee to use unpaid
                leave prior to taking paid sick leave; doing so would be akin to
                denying or attempting to deny the employee the paid sick leave to which
                he or she is entitled.
                 Section 826.160(c) explains the sequencing of expanded family and
                medical leave with other types of leave. No employer shall require,
                coerce, or unduly influence an employee to use another source of paid
                leave before taking expanded family and medical leave. However, an
                eligible employee may elect to use, or an employer may require that an
                employee use, leave the employee has available under the employer's
                policies to care for a child, such as vacation or personal leave or
                paid time off, concurrently. If expanded family and medical leave is
                used concurrently with another source of paid leave, then the employer
                has to pay the employee the full amount to which the employee is
                entitled under the employer's preexisting paid leave policy for the
                period of leave taken, even if that amount is greater than $200 per day
                or $10,000 in the aggregate. But the employer's eligibility for tax
                credits is still limited to the cap of $200 per day or $10,000 in the
                aggregate.
                 Section 826.160(d)-(e) explains that an employer has no obligation
                to provide, and an employee has no right or entitlement to receive,
                financial compensation or other reimbursement for unused paid sick
                leave or unused expanded family and medical leave in the event the
                employee's employment ends after April 1, 2020, but before the FFCRA's
                expiration on December 31, 2020. Moreover, the Department interprets
                sections 5107(2) and 5109 of the FFCRA to mean that no employer has an
                obligation to provide, and no employee or former employee has a right
                or entitlement to receive, financial compensation or other
                reimbursement for unused paid sick leave or unused expanded family and
                medical leave upon or after the FFCRA's expiration on December 31,
                2020.
                 Section 826.160(f) explains that any one individual employee is
                limited to a maximum of two weeks (80 hours) paid sick leave as
                described in Sec. 826.160. Thus, the absolute upper limit of 80 hours
                of paid sick leave to which one could potentially be eligible is per
                person and not per job. Should an employee change positions during the
                period of time in which the paid sick leave is in effect, he or she is
                not entitled to a new round of paid sick leave. Once an employee takes
                the maximum 80 hours of paid sick leave, he or she is not entitled to
                any paid sick leave from a subsequent employer. If an employee changes
                positions before taking 80 hours of paid sick leave, then his or her
                new employer (if covered by FFCRA) must provide paid sick leave
                [[Page 19342]]
                until the employee has taken 80 hours of paid sick leave total
                regardless of the employer providing it.
                IV. Statutory and Regulatory Requirements
                A. Administrative Procedure Act
                 This rule is issued without prior notice and opportunity to comment
                and with an immediate effective date pursuant to the Administrative
                Procedure Act (APA). 5 U.S.C. 553(b) and (d).
                1. Good Cause To Forgo Notice and Comment Rulemaking
                 The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule
                without prior notice and opportunity to comment when the agency, for
                good cause, finds that those procedures are ``impracticable,
                unnecessary, or contrary to the public interest.'' The FFCRA authorizes
                the Department to issue regulations under the EPSLA and the EFMLEA
                pursuant to the good cause exception of the APA. FFCRA sections 3102(b)
                (adding FMLA section 110(a)(3)), 5111.
                 The Department is bypassing advance notice and comment because of
                the exigency created by sections 3106 and 5108 of the FFCRA, which go
                into effect on April 1, 2020, and expire on December 31, 2020. The
                COVID-19 pandemic has escalated at a rapid pace and scale, leaving
                American families with difficult choices in balancing work, child care,
                and the need to seek medical attention for illness caused by the virus.
                To avoid economic harm to American families facing these conditions, a
                decision to undertake notice and comment rulemaking would likely delay
                final action on this matter by weeks or months, and would, therefore,
                complicate and likely preclude the Department from successfully
                exercising the authority created by sections 3106 and 5108. Moreover,
                such delay would be counter to one of the FFCRA's main purposes in
                establishing paid leave: enabling employees to leave the workplace now
                to help prevent the spread of COVID-19.
                2. Good Cause To Proceed With an Immediate Effective Date
                 The APA also authorizes agencies to make a rule effective
                immediately, upon a showing of good cause, instead of imposing a 30-day
                delay. 5 U.S.C. 553(d)(3). The FFCRA authorizes the Department to issue
                regulations that are effective immediately under the EPSLA and the
                EFMLEA pursuant to the good cause exception of the APA. FFCRA sections
                3102(b) (adding FMLA section 110(a)(3)), 5111; CARES Act section
                3611(1)-(2). For the reasons stated above, the Department has concluded
                it has good cause to make this temporary rule effective immediately and
                until the underlying statute sunsets on December 31, 2020.
                B. Executive Order 12866, Regulatory Planning and Review; and Executive
                Order 13563, Improved Regulation and Regulatory Review
                1. Introduction
                 Under E.O. 12866, OIRA determines whether a regulatory action is
                significant and therefore, subject to the requirements of the E.O. and
                OMB review. Section 3(f) of E.O. 12866 defines a ``significant
                regulatory action'' as an action that is likely to result in a rule
                that (1) has an annual effect on the economy of $100 million or more,
                or adversely affects in a material way a sector of the economy,
                productivity, competition, jobs, the environment, public health or
                safety, or state, local, or tribal governments or communities (also
                referred to as economically significant); (2) creates serious
                inconsistency or otherwise interferes with an action taken or planned
                by another agency; (3) materially alters the budgetary impacts of
                entitlement grants, user fees, or loan programs, or the rights and
                obligations of recipients thereof; or (4) raises novel legal or policy
                issues arising out of legal mandates, the President's priorities, or
                the principles set forth in the E.O. As described below, this temporary
                rule is economically significant. The Department has prepared a
                Regulatory Impact Analysis (RIA) in connection with this rule, as
                required under section 6(a)(3) of Executive Order 12866, and OMB has
                reviewed the rule. OIRA has designated this rule as a ``major rule'',
                as defined by 5 U.S.C. 804(2).
                 Executive Order 13563 directs agencies to propose or adopt a
                regulation only upon a reasoned determination that its benefits justify
                its costs; the regulation is tailored to impose the least burden on
                society, consistent with achieving the regulatory objectives; and in
                choosing among alternative regulatory approaches, the agency has
                selected those approaches that maximize net benefits. Executive Order
                13563 recognizes that some benefits are difficult to quantify and
                provides that, where appropriate and permitted by law, agencies may
                consider and discuss qualitatively values that are difficult or
                impossible to quantify, including equity, human dignity, fairness, and
                distributive impacts.
                2. Overview of the Rule
                 The rule implements the EPSLA and the EFMLEA, as modified by the
                CARES Act. The EPSLA requires that certain employers provide two
                workweeks (up to 80 hours) of paid sick leave to eligible employees who
                need to take leave from work for specified reasons. The EFMLEA requires
                that certain employers provide up to twelve weeks of expanded family
                and medical leave to eligible employees who need to take leave from
                work because the employee is caring for his or her son or daughter
                whose school or place of care is closed or child care provider is
                unavailable due to COVID-19 related reasons. Payments from employers to
                employees for such paid leave, as well as allocable costs related to
                the maintenance of health benefits during the period of the required
                leave, is to be reimbursed by the Department of the Treasury via tax
                credits, up to statutory limits, as provided under the FFCRA.
                3. Economic Impacts
                 The Department estimated the number of affected employers and
                quantified the costs associated with this temporary rule. The paid sick
                leave and the expanded family and medical leave provisions of the FFCRA
                both apply to employers with fewer than 500 employees. The 2017
                Statistics of U.S. Businesses (SUSB) reports that there are 5,976,761
                private firms in the U.S. with fewer than 500 employees.\5\ This
                temporary rule says that small employers with fewer than 50 employees
                may qualify for an exemption from the requirement to provide leave due
                to school or place of care closings or child care unavailability if the
                leave payments would jeopardize the viability of their business as a
                going concern. The 2017 SUSB reports that there are 5,755,307 private
                firms with fewer than 50 employees, representing 96 percent of all
                impacted firms (firms with fewer than 500 employees). The employers who
                are not able to qualify for the exemption discussed above are those
                with fewer than 500 employees but greater than or equal to 50
                employees. Using the SUSB data mentioned above, the Department
                estimates that there are 221,454 firms that meet this criteria.
                ---------------------------------------------------------------------------
                 \5\ Statistics of U.S. Businesses 2017, https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html, 2017 SUSB Annual
                Data Tables by Establishment Industry.
                ---------------------------------------------------------------------------
                 Although the rule exempts certain health care providers and
                emergency responders from the definition of eligible employee for
                purposes of the FFCRA, their employers may have some
                [[Page 19343]]
                employees who do not meet this definition, so these employers may still
                be impacted by the provisions of the FFCRA.
                 The Department estimates that employees who work for employers with
                fewer than 500 employees could potentially benefit from this rule.
                According to the 2017 SUSB data, the 5,976,761 firms that meet this
                criteria employ 60,556,081 workers. Not all eligible employees will
                require use of the paid sick leave or expanded family and medical leave
                provisions of the FFCRA. The Department lacks data to determine how
                many employees will use this leave, which type of leave they will use
                and for what reason, and the wages of those who will use the leave.
                 Certain health care providers and emergency responders may be
                excluded from this group of impacted employees. The rule defines health
                care provider to include anyone employed at any doctor's office,
                hospital, health care center, clinic, post-secondary educational
                institution offering health care instruction, medical school, local
                health department or agency, nursing facility, retirement facility,
                nursing home, home health care provider, any facility that performs
                laboratory or medical testing, pharmacy, or any similar institution.
                According to the SUSB data mentioned above, employers with fewer than
                500 employees in the health care and social assistance industry employ
                9.0 million workers.\6\ This estimate is likely to be the upper bound
                of potentially exempt health care industry workers, because it could
                include workers that may not be employed at an institution covered by
                the exemption. This estimate may not, however, include employees who
                provide services to the health care industry. The SUSB data does not
                include further industry breakouts, and so the Department is unable to
                determine the exact number of workers employed at these organizations
                with fewer than 500 employees.
                ---------------------------------------------------------------------------
                 \6\ Statistics of U.S. Businesses 2017, https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html, 2017 SUSB Annual
                Data Tables by Establishment Industry.
                ---------------------------------------------------------------------------
                 The rule defines emergency responders as anyone necessary for the
                provision of transport, care, healthcare, comfort and nutrition of such
                patients, or others needed for the response to COVID-19. The rule
                provides a list of occupations that includes but is not limited to
                military or National Guard, law enforcement officers, correctional
                institution personnel, fire fighters, emergency medical services
                personnel, physicians, nurses, public health personnel, emergency
                medical technicians, paramedics, emergency management personnel, 911
                operators, child welfare workers and service providers, and public
                works personnel. Because this list consists of occupations spread
                across various industries, the Department is unable to use the SUSB
                data to determine the magnitude of potential affected emergency
                responders. According to the May 2018 BLS Occupational Employment and
                Wages estimates, these occupations have a combined employment of 4.4
                million.\7\ This may be an over count or an under count of the
                potentially exempt emergency responders. The estimate may be an over
                count because it includes employees who work for employers of all
                sizes, not just those with fewer than 500 employees. The estimate may
                be an under count because it does not include military or national
                guard, as they are not counted in the OES estimates.
                ---------------------------------------------------------------------------
                 \7\ Occupational Employment and Wages, May 2018, https://www.bls.gov/oes/2018/may/oes131141.htm. The Department used SOC
                codes 29-1060 (Physicians and Surgeons), 29-1141 (Registered
                Nurses), 29-1171 (Nurse Practitioners), 29-2041 (Emergency Medical
                Technicians and Paramedics), 33-2000 (Fire Fighting and Prevention
                Workers), and 33-3000 (Law Enforcement Workers), to represent the
                occupations listed in the rule.
                ---------------------------------------------------------------------------
                i. Costs
                 This temporary rule implementing the paid sick leave and expanded
                family and medical leave provisions of the FFCRA will result in four
                different categories of costs to employers: Rule familiarization costs,
                documentation costs, costs of posting a notice, and other managerial
                and operating costs. The temporary rule will also result in increased
                costs to the Department to administer the rule and handle complaints
                and claims related to the provisions of the Acts.
                a. Rule Familiarization Costs
                 The Department estimates that all employers with fewer than 500
                employees will need to review the rule to determine their
                responsibilities. For those 5,755,307 employers with fewer than 50
                employees, they will need to review the rule to determine what the
                rules are for all businesses, what the small employer exemptions are,
                and how to either comply or show that the requirements of the rule
                would jeopardize the viability of their business. The Department
                estimates that these small employers will likely spend one hour to
                understand their responsibilities under the rule. For the 221,454
                employers with fewer than 500 employees, but greater than or equal to
                50 employees, they will likely need to spend one hour to read the rule
                and determine their responsibilities to provide paid sick leave and
                expanded family and medical leave. The Department estimates that this
                will be a one-time rule familiarization cost, as the provisions of the
                Act sunset on December 31, 2020.
                 The Department's analysis assumes that the rule would be reviewed
                by Compensation, Benefits, and Job Analysis Specialists (SOC 13-1141)
                or employees of similar status and comparable pay. The median hourly
                wage for these workers is $30.29 per hour.\8\ In addition, the
                Department also assumes that benefits are paid at a rate of 46 percent
                \9\ and overhead costs are paid at a rate of 17 percent of the base
                wage, resulting in a fully-loaded hourly wage of $49.37.\10\ The
                Department estimates that the total rule familiarization cost to
                employers with fewer than 50 employees, who spend one hour reviewing
                the rule, will be $284,139,507 (5,755,307 firms x 1 hour x $49.37). The
                Department estimates that the total rule familiarization cost to
                employers with greater than or equal to 50 but fewer than 500 employees
                will be $10,933,184 (221,454 firms x 1 hour x $49.37). Total rule
                familiarization costs for all impacted firms will therefore be
                $295,072,691.
                ---------------------------------------------------------------------------
                 \8\ Occupational Employment and Wages, May 2018, https://www.bls.gov/oes/2018/may/oes131141.htm.
                 \9\ The benefits-earnings ratio is derived from the Bureau of
                Labor Statistics' Employer Costs for Employee Compensation data
                using variables CMU1020000000000D and CMU1030000000000D.
                 \10\ $30.29 + $30.29(0.46) + $30.29(0.17) = $49.37.
                ---------------------------------------------------------------------------
                b. Costs of Documentation
                 Employers with fewer than 50 employees are able to be exempt from
                providing paid sick leave for child care purposes and expanded family
                and medical leave under the FFCRA if they are able to show that
                complying with the requirements would jeopardize the viability of their
                business as a going concern. These employers will need to demonstrate
                this burden, and to show that they are exempt. These small employers
                must document the facts and circumstances to demonstrate this burden if
                they have employees who are requesting paid sick leave or expanded
                family and medical leave. Although the employers are not required to
                send such material or documentation to the Department, they are
                required to retain such records for their own files. Some employers
                will not qualify for the exemption. The Department lacks specific data
                to estimate the number of small employers who will use the exemption,
                but the Department assumes
                [[Page 19344]]
                that until the end of the year, potentially up to 10 percent of these
                5,755,307 employers (575,531) will likely document that the
                requirements of the Act will jeopardize the viability of their
                businesses. The Department estimates that each of these employers will
                spend one hour for creating and documenting these records. Costs of
                documentation for these small employers will therefore be $28,413,965
                (575,531 firms x 1 hour x $49.37).
                 Employers are required to retain all records or documentation
                provided by the employee prior to taking paid sick leave or expanded
                family and medical leave. When employees take expanded family and
                medical leave, employees must provide their employers with appropriate
                documentation in support of such leave. Employers must retain this
                documentation, as it may be required for tax credits and other purposes
                under the FFCRA. For the 221,454 employers with between 50 and 500
                employees, the Department estimates that they will spend an additional
                one hour, on average, on documentation associated with this rule. For
                the 5,755,307 employers with fewer than 50 employees, the Department
                assumes that they will spend 30 minutes, on average, on documentation
                associated with this rule. The time spent by small employers will be
                lower because they have fewer employees, and some of them will be able
                to use the small business exemption from the requirement to provide
                leave due to school or childcare closings. The Department believes an
                average of one hour or 30 minutes is appropriate for the year, because
                some employers will not have any employees that will request leave, so
                will therefore not need any documentation, while other employers will
                have multiple employees requesting this leave. Documentation costs for
                these employers will therefore be $153,002,937 (5,755,307 x 0.5 hours x
                $49.37) + (221,454 x 1 hour x $49.37).
                 Total documentation costs for employers of all sizes are therefore
                estimated to be $181,416,902 ($28,413,965 + $153,002,937).
                c. Costs of Posting a Notice
                 Section 5103(a) of the FFCRA requires employers to post a notice to
                inform their employees of the requirements of the EPSLA. The notice
                must be posted in a conspicuous place on the premises of the employer
                where notices to employees are customarily posted, or emailed or direct
                mailed to employees, or posted electronically on an employee
                information internal or external website. All employers covered by the
                paid sick leave and expanded family and medical leave provisions of the
                FFCRA are required to post this notice. The Department estimates that
                all 5,976,761 employers with fewer than 500 employees will post this
                notice, and that 99 percent of employers (5,916,993) will post the
                information electronically while 1 percent (59,768) will physically
                post the notice on employee bulletin boards. The Department estimates
                that it will take 15 minutes (or 0.25 hours) for employers posting the
                provision electronically to prepare and post the provision, and it will
                take 75 minutes (or 1.25 hours) for employers posting the notice
                manually to prepare the notice and post it in a conspicuous place where
                notices to employees are customarily posted. Employers who post
                electronically will incur a one-time cost of $73,030,486 (5,916,993 x
                0.25 x $49.37) and those who physically post the notice will incur a
                one-time cost of $3,688,433 (59,768 x 1.25 x $49.37). Therefore, the
                total cost of posting this notice will be $76,718,919. Employers may
                also incur a small cost of manually producing the notices, including
                paper, printer ink, etc., but the Department believes that this cost
                will be minimal compared to the cost of the time spent preparing and
                posting the notice.
                d. Other Managerial and Operating Costs
                 In order to comply with the paid sick leave and expanded family and
                medical leave provisions of the FFCRA, employers may incur additional
                managerial and operating costs that the Department is unable to
                quantify. For example, when employees require the use of this paid
                leave, employers will need to determine if their employees are eligible
                for the leave, and will need to calculate the amount that an employee
                should receive, and will need to make the adjustments to an employee's
                paycheck, and will also need to adjust bookkeeping practices to track
                the amount of leave used by an employee. Because the Department lacks
                data on how many employees will require either paid sick leave or
                expanded family and medical leave through the end of the year, the
                total managerial and operation costs incurred by employers cannot be
                quantified. However, for illustrative purposes, for each employee that
                requires the use of this leave, the Department estimates it will take
                an employer two hours to complete these additional tasks. If these
                tasks are performed by a Compensation, Benefits, and Job Analysis
                Specialist with a fully-loaded hourly wage of $49.37, then the cost to
                each employer per employee requiring leave is $98.74. The Department
                estimates that all 5,976,761 firms with fewer than 500 employees could
                potentially incur this cost, but is unable to determine the extent to
                which leave will be used by employees given the various eligibility
                requirements, and therefore cannot estimate the total managerial and
                operation costs incurred.
                 There are likely other costs to employers for which the Department
                is unable to quantify in part because the number of employees who will
                qualify for leave under the FFCRA and take such leave at each employer
                is unknown and because the productivity losses caused by employees
                taking leave likely vary by employer and for each individual employee,
                but which are discussed qualitatively here. The new paid leave
                provisions of the Act may result in an increase in the number of
                employees who take advantage of sick leave and family and medical
                leave, compared to the number of employees who would use leave absent
                the new provisions. When an employee takes leave, the overall
                productivity of the business likely will suffer (although there could
                be some offsetting productivity improvements if coworkers are less
                likely to become infected) and, in some instances, the business may
                face unique operational challenges which could hinder its ability to
                continue operations for the same duration or at the same capacity as
                before the employee(s) took leave. These costs are difficult to
                quantify, but likely will be significant, especially if a large number
                of employees are eligible for, and take, leave. These costs are not
                created specifically because of any unique features of this temporary
                rule, but are directly linked to the statute's leave provisions.
                e. Costs to the Department
                 WHD will also incur costs associated with the paid sick leave and
                expanded family and medical leave provisions of the FFCRA. Prior to
                this Act, WHD had not enforced a comprehensive paid sick leave program
                applicable to a large segment of the U.S. workforce (minus the
                exemptions). WHD will incur the additional costs of setting up a new
                enforcement program, administering the program, and processing
                complaints associated with this new provision. The Department does not
                have data to assess this cost to the Department.
                ii. Cost Summary
                 As discussed above, the quantified costs associated with the paid
                sick leave and expanded family and medical leave provisions of the
                FFCRA and with this temporary rule are rule familiarization
                [[Page 19345]]
                costs, costs of documentation, and the cost of posting a notice. Table
                1 summarizes all of these costs in 2018 dollars. The Department
                estimates that total costs in 2020 are $553 million.
                [GRAPHIC] [TIFF OMITTED] TR06AP20.000
                iii. Transfers
                 The transfers associated with this rule are the paid sick leave and
                expanded family and medical leave that employees will receive as a
                result of the FFCRA. The paid leave will initially be provided by
                employers, who will then be reimbursed by the Department of the
                Treasury through a tax credit, up to statutory limits, which is then
                ultimately paid for by taxpayers (although there may be some offsetting
                taxpayer effects due to statutory limits, which is then ultimately paid
                for by taxpayers' reduced reliance on social assistance programs). Such
                transfers may be reduced if employees opt to use or employers require
                that employees use certain pre-existing leave (i.e., personal or
                vacation leave or paid time off) concurrently with any EFMLEA leave. As
                discussed above, the total number of employees who are potentially
                eligible for this leave is as high as 61 million, but the number of
                employees who will actually use the leave will be a smaller share of
                this total. The Department does not know to what extent employees will
                be exposed to COVID-19 themselves, will be subject to a Federal, State,
                or local quarantine, will be caring for an individual exposed to COVID-
                19, or will need to stay home to take care of a child out of school or
                child care (and unable to telework), and therefore does not know how
                many employees will require use of the paid leave provided in the Act.
                In order to quantify the potential transfer, the Department would need
                to determine the number of days of leave that would be taken, and the
                monetary value of those days of leave. The FFCRA requires employers to
                pay leave based on an employee's regular rate, so the Department would
                need to determine the regular rate of each employee who requests leave.
                This estimate could vary greatly depending on the occupations and
                industries of employees requesting leave. The share of the regular rate
                used to calculate the transfer would also depend on the reason for
                which an employee requires the use of paid leave. The Department would
                also need to determine the number of days each employee would take
                leave, the type of leave employees would take, and whether EFMLEA leave
                would run concurrently with certain previously-provided leave, all of
                which would vary depending on whether they are taking paid sick leave
                or expanded family and medical leave. If an employee requires the use
                of paid sick leave to self-quarantine, they will likely take the entire
                80 hours allotted, because the CDC's guidelines recommend a quarantine
                period of two weeks. Additionally, an employee may take up to ten weeks
                of paid expanded family and medical leave to care for his or her child
                whose school or place of care is closed or child care provider is
                unavailable. For school districts that have closed through the end of
                the 2020 school year, it is likely that these parents would take the
                entire twelve week allotment. The Department lacks data to determine
                which employees will need leave, how many days of leave will ultimately
                be used, and how much pay employers will be required to provide for
                such leave. Although the Department is unable to quantify the transfer
                of paid leave, we expect that it is likely to exceed $100 million in
                2020.
                iv. Benefits
                 The benefits of the paid sick leave and expanded family and medical
                leave provisions of the FFCRA are vast, and although unable to be
                quantified, are expected to greatly outweigh any costs of these
                provisions. With the availability of paid leave, sick or potentially
                exposed workers will be encouraged to stay home, thereby helping to
                curb the spread of the virus and lessen the strain on hospitals and
                health care providers. If employees still receive pay while on leave,
                they will benefit from being able to cover necessary expenses, and to
                continue to spend money to help support the economy. This will have
                spillover effects not only on the individuals who receive pay while on
                leave, but also on their communities and the national economy as a
                whole, which is facing unique challenges due to the COVID-19 global
                pandemic.
                 The expanded family and medical leave provisions of the FFCRA will
                allow parents to care for their children who are out of school, or
                whose childcare provider is unavailable due to COVID-19 related
                reasons. This will allow parents to avoid extra childcare costs that
                they otherwise may have to incur.
                 Without this paid sick leave and expanded family and medical leave
                (that is, without the policy of tying some federal COVID-19 assistance
                to employment arrangements), there could be long-term costs in addition
                to the short term impacts listed above. For example, there could be
                substantial rehiring costs for employers when the public health concern
                has abated and, simultaneously, transition costs to workers as they
                restart their careers. A spillover effect of these frictions might be
                increased reliance on social assistance programs.
                v. Regulatory Alternatives
                 The Department notes that the FFCRA delegates to the Secretary the
                authority to issue regulations to ``exclude certain health care
                providers and emergency responders from the definition of eligible
                employee'' under section 110(a)(1)(A) of the EFMLEA and 5110(1) of the
                EPSLA; ``to exempt small businesses with fewer than 50 employees from
                the requirements'' of section 102(a)(1)(F) of EFMLEA and 5102(a)(5) of
                the EPSLA ``when the imposition of such requirements would jeopardize
                the viability of the business as a going concern''; and ``as necessary
                to carry out the purposes of the EPSLA to ensure consistency between it
                and Division C and Division G of the FFCRA.''
                 Because the FFCRA itself establishes the basic expanded family and
                medical leave and paid sick leave requirements that the Department is
                responsible for implementing, many potential regulatory alternatives
                would be beyond the scope of the Department's authority in issuing this
                temporary rule. The
                [[Page 19346]]
                Department considered two regulatory alternatives to determine the
                correct balance between providing benefits to employees and imposing
                compliance costs on covered employers. This section presents the two
                alternatives to the provisions set forth in this temporary rule.
                 The Department considered one regulatory alternative that would be
                less restrictive than what is currently being issued and two that would
                be more restrictive. For the less-restrictive option, the Department
                considered excluding all small businesses with fewer than 50 employees
                from the requirements of the FFCRA, assuming that any requirement to
                provide expanded family and medical leave or paid sick leave for child
                care to their employees would jeopardize the viability of those small
                businesses. The Department concluded, however, that requiring small
                businesses to demonstrate that the viability of their business will be
                jeopardized if they have to provide paid leave would ensure uniformity
                among these employers, help the Department administer sections
                102(a)(1)(F) of FMLA and 5102(a)(5) of the EPSLA, and would best
                conform to the FFCRA.
                 For the first more restrictive alternative, the Department
                considered requiring small businesses with fewer than 50 employees to
                maintain formal records in order to demonstrate a need for exemption
                from the rule's requirements. The Department concluded, however, that
                this requirement would be unnecessarily onerous for these employers,
                particularly given that they are not otherwise subject to the FMLA. The
                Department believes that the requirements issued in this temporary rule
                will ensure that small employers have the flexibility they need to
                balance their staffing and business needs during the COVID-19 public
                health emergency.
                 For the second more restrictive alternative, the Department
                considered using a more narrow definition of health care provider and
                emergency responder for purposes of excluding such employees from the
                EPSLA's paid sick leave requirements and/or the EFMLEA's expanded
                family and medical leave requirements. The Department considered only
                allowing employers to exclude those workers who directly work with
                COVID-19 patients, but felt that such a limitation would not provide
                sufficient flexibility to the health care community to make necessary
                staffing decisions to address the COVID-19 public health emergency.
                Further, a more narrow definition could leave health care facilities
                without staff to perform critical services needed to battle COVID-19.
                C. Regulatory Flexibility Analysis
                 The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
                as amended by the Small Business Regulatory Enforcement Fairness Act of
                1996, Public Law 104-121 (March 29, 1996), requires federal agencies
                engaged in rulemaking to consider the impact of their proposals on
                small entities, consider alternatives to minimize that impact, and
                solicit public comment on their analyses. The RFA requires the
                assessment of the impact of a regulation on a wide range of small
                entities, including small businesses, not-for-profit organizations, and
                small governmental jurisdictions. Agencies must perform a review to
                determine whether a proposed or final rule would have a significant
                economic impact on a substantial number of small entities. 5 U.S.C. 603
                and 604.
                 As discussed above, the Department calculated rule familiarization
                costs, documentation costs, and the cost of posting a notice for all
                employers with fewer than 500 employees. For employers with fewer than
                50 employees, their one-time rule familiarization cost would be $49.37.
                Their cost for documentation would be $24.69, and the cost of posting a
                notice would be $12.84. Total cost to these employers would be $111.58.
                An additional ten percent of employers with fewer than 50 employees
                will have an additional documentation cost of $49.37 for qualifying for
                the small employer exemption, bringing their total cost to $160.95. For
                employers with at least 50 employees but fewer than 500 employees,
                their one-time rule familiarization cost would be $49.37. Their cost
                for documentation would be $49.37, and the cost of posting a notice
                would be $12.84. The average managerial and operational cost to an
                employer would be $98.74. Total cost to these employers would be
                $210.32. These estimated costs will be minimal for small business
                entities, and will be well below one percent of their gross annual
                revenues, which is typically at least $100,000 per year for the
                smallest businesses. Based on this determination, the Department
                certifies that the rule will not have a significant economic impact on
                a substantial number of small entities.
                D. Unfunded Mandates Reform Act of 1995
                 The Unfunded Mandates Reform Act of 1995 (UMRA) requires agencies
                to prepare a written statement for rules that include any federal
                mandate that may result in increased expenditures by state, local, and
                tribal governments, in the aggregate, or by the private sector, of $165
                million ($100 million in 1995 dollars adjusted for inflation using the
                CPI-U) or more in at least one year. This statement must: (1) Identify
                the authorizing legislation; (2) present the estimated costs and
                benefits of the rule and, to the extent that such estimates are
                feasible and relevant, its estimated effects on the national economy;
                (3) summarize and evaluate state, local, and tribal government input;
                and (4) identify reasonable alternatives and select, or explain the
                non-selection, of the least costly, most cost-effective, or least
                burdensome alternative.
                (1) Authorizing Legislation
                 This rule is issued pursuant to the FFCRA.
                (2) Assessment of Quantified Costs and Benefits
                 For purposes of the UMRA, this rule includes a federal mandate that
                is expected to result in increased expenditures of more than $165
                million in the first year. Based on the cost analysis in this temporary
                rule, the Department determined that the rule will result in Year 1
                total costs for rule familiarization, documentation, and posting of
                notices totaling $553 million (see Table 1). There will be no
                additional costs incurred in subsequent years.
                 UMRA requires agencies to estimate the effect of a regulation on
                the national economy if, at its discretion, such estimates are
                reasonably feasible and the effect is relevant and material.\11\
                However, OMB guidance on this requirement notes that such macroeconomic
                effects tend to be measurable in nationwide econometric models only if
                the economic effect of the regulation reaches 0.25 percent to 0.5
                percent of GDP, or in the range of $51.5 billion to $102.9 billion
                (using 2018 GDP). A regulation with smaller aggregate effect is not
                likely to have a measurable effect in macroeconomic terms unless it is
                highly focused on a particular geographic region or economic sector,
                which is not the case with this rule. Given OMB's guidance, the
                Department has determined that a full macroeconomic analysis is not
                likely to show that these costs would have any measurable effect on the
                economy.
                ---------------------------------------------------------------------------
                 \11\ See 2 U.S.C. 1532(a)(4).
                ---------------------------------------------------------------------------
                (3) Least Burdensome Option Explained
                 The Department believes that it has chosen the least burdensome
                option
                [[Page 19347]]
                given the FFCRA's provisions. Although the Department is requiring
                small employers with fewer than 50 employees to maintain formal records
                in order to demonstrate a need for exemption from the rule's
                requirements they are not required to provide any documents to the
                Department. The Department believes that the requirements issued in
                this temporary rule will ensure that small employers have the
                flexibility they need to balance their staffing and business needs
                during the COVID-19 pandemic.
                E. Executive Order 13132 (Federalism)
                 This rule does not have substantial direct effects on the States,
                on the relationship between the National Government and the States, or
                on the distribution of power and responsibilities among the various
                levels of government. Therefore, in accordance with section 6 of
                Executive Order No. 13132, 64 FR 43255 (Aug. 4, 1999), this rule does
                not have sufficient federalism implications to warrant the preparation
                of a federalism summary impact statement.
                F. Executive Order 13175, Indian Tribal Governments
                 This rule would not have substantial direct effects on one or more
                Indian tribes, on the relationship between the Federal Government and
                Indian tribes, or on the distribution of power and responsibilities
                between the Federal Government and Indian tribes.
                G. Paperwork Reduction Act
                 The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
                and its attendant regulations, 5 CFR part 1320, require the Department
                to consider the agency's need for its information collections, their
                practical utility, as well as the impact of paperwork and other
                information collection burdens imposed on the public, and how to
                minimize those burdens. The Department is seeking emergency approval
                related to the collection of information described herein. Persons are
                not required to respond to the information collection requirements
                until OMB approves them under the PRA. This temporary rule creates a
                new information collection specific to paid leave under the FFCRA. The
                Department has created a new information collection request and
                submitted the request to OMB for approval under OMB control number
                1235-0NEW (Paid Leave under the Families First Coronavirus Response
                Act) for this action.
                 Summary: Section 826.140(a) requires covered employer to document
                and retain information submitted by an employees to support requests
                for paid sick leave and expanded family and medical leave. Section
                826.140(a) further requires any employer that denies a request for
                leave pursuant to the small business exemption under Sec. 826.40(b)
                must document and retain the determination by its authorizing officer
                that it meets the criteria for that exemption. Finally, Sec.
                826.140(c) advises, but does not require, employers to create and
                maintain certain records for the purpose of obtaining a tax credit from
                the Internal Revenue Service.
                 Purpose and Use: WHD and employees use employer records to
                determine whether covered employers have complied with various
                requirements under the FFCRA. Employers use the records to document
                compliance with the FFCRA.
                 Technology: The regulations prescribe no particular order or form
                of records, and employers may preserve records in forms of their
                choosing, provided that facilities are available for inspection and
                transcription of the records.
                 Minimizing Small Entity Burden: Although the FLSA recordkeeping
                requirements do involve small businesses, including small state and
                local government agencies, the Department minimizes respondent burden
                by requiring no specific order or form of records in responding to this
                information collection.
                 Total annual burden estimates, which reflect the new responses for
                the recordkeeping information collection, are summarized as follows:
                 Type of Review: Approval of a new collection.
                 Agency: Wage and Hour Division, Department of Labor.
                 Title: Paid Leave under the Families First Coronavirus Response
                Act.
                 OMB Control Number: 1235-0NEW.
                 Affected Public: Private Sector: businesses or other for-profits,
                farms, and not-for-profit institutions: State, Local and Tribal
                governments; and individuals or households.
                 Estimated Number of Respondents: 7,903,071.
                 Estimated Number of Responses: 7,903,071.
                 Estimated Burden Hours: 801,962 hours.
                 Estimated Time per Response: Various.
                 Frequency: Various.
                 Other Burden Cost: $4,255,500 (operations/maintenance).
                List of Subjects in 29 CFR Part 826
                 Wages.
                 Signed at Washington, DC, this 1st day of April, 2020.
                Cheryl M. Stanton,
                Administrator, Wage and Hour Division.
                0
                For the reasons set out in the preamble, the Department of Labor amends
                title 29 of the Code of Federal Regulations by adding part 826 to read
                as follows:
                PART 826--PAID LEAVE UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE
                ACT
                Sec.
                826.10 General.
                826.20 Paid leave entitlements.
                826.21 Amount of Paid Sick Leave.
                826.22 Amount of pay for Paid Sick Leave.
                826.23 Amount of Expanded Family and Medical Leave.
                826.24 Amount of pay for Expanded Family and Medical Leave.
                826.25 Calculating the Regular Rate under the FFCRA.
                826.30 Employee eligibility for leave.
                826.40 Employer coverage.
                826.50 Intermittent leave.
                826.60 Leave to care for a Child due to School or Place of Care
                closure or Child Care unavailability--intersection between the EPSLA
                and the EFMLEA.
                826.70 Leave to care for a Child due to School or Place of Care
                closure or Child Care unavailability--intersection of the EFMLEA and
                the FMLA.
                826.80 Employer notice.
                826.90 Employee notice of need for leave.
                826.100 Documentation of need for leave.
                826.110 Health care coverage.
                826.120 Multiemployer plans.
                826.130 Return to work.
                826.140 Recordkeeping.
                826.150 Prohibited acts and enforcement under the EPSLA.
                826.151 Prohibited acts and enforcement under the EFMLEA.
                826.152 Filing a complaint with the Federal Government.
                826.153 Investigative authority of the Secretary.
                826.160 Effect on other laws, employer practices, and collective
                bargaining agreements.
                 Authority: Pub. L. 116-127 sections 3102(b) and 5111(3); Pub. L.
                116-136 section 3611(7).
                Sec. 826.10 General.
                 (a) Definitions. For the purposes of this rule:
                 Child Care Provider. The term ``Child Care Provider'' means a
                provider who receives compensation for providing child care services on
                a regular basis. The term includes a center-based child care provider,
                a group home child care provider, a family child care provider, or
                other provider of child care services for compensation that is
                licensed, regulated, or registered under State law as described in
                section 9858c(c)(2)(E) of Title 42; and satisfies the State and local
                [[Page 19348]]
                requirements, including those referred to in section 9858c(c)(2)(F) of
                Title 42. Under the Families First Coronavirus Response Act (FFCRA),
                the eligible child care provider need not be compensated or licensed if
                he or she is a family member or friend, such as a neighbor, who
                regularly cares for the Employee's child.
                 Commerce. The terms ``Commerce'' and ``industry or activity
                affecting commerce'' mean any activity, business, or industry in
                commerce or in which a labor dispute would hinder or obstruct commerce
                or the free flow of commerce, and include ``commerce'', and any
                ``industry affecting commerce'', as defined in paragraphs (1) and (3)
                of section 501 of the Labor Management Relations Act of 1947 (29 U.S.C.
                142 (1) and (3)).
                 COVID-19. The term ``COVID-19'' has the meaning given the term in
                section 506 of the Coronavirus Preparedness Response Supplemental
                Appropriations Act, 2020.
                 EFMLEA. The term ``EFMLEA'' means the Emergency Family and Medical
                Leave Expansion Act, Division C of the FFCRA.
                 Employee. The term ``Employee'' has the same meaning given that
                term in section 3(e) of the Fair Labor Standards Act of 1938 (FLSA) (29
                U.S.C. 203(e)).
                 Eligible Employee. For the purposes of the EFMLEA, the term
                ``Eligible Employee'' means an Employee who has been employed for at
                least 30 calendar days by the Employer.
                 Employer:
                 (i) Subject to paragraph (ii) of this definition, ``Employer'':
                 (A) Means any person engaged in Commerce or in any industry or
                activity affecting commerce that:
                 (1) In the case of a private entity or individual, employs fewer
                than 500 Employees; and
                 (2) In the case of a Public Agency or any other entity that is not
                a private entity or individual, employs one or more Employees;
                 (B) Includes:
                 (1) Any person acting directly or indirectly in the interest of an
                employer in relation to an Employee (within the meaning of such phrase
                in section 3(d) of the FLSA (29 U.S.C. 203(d));
                 (2) Any successor in interest of an employer;
                 (3) Joint employers as defined under the FLSA, part 791 of this
                chapter, with respect to certain Employees; and
                 (4) Integrated employers as defined under the Family and Medical
                Leave Act (FMLA), Sec. 825.104(c)(2) of this chapter.
                 (C) Includes any Public Agency; and
                 (D) Includes the Government Accountability Office and the Library
                of Congress.
                 (ii) For purposes of the EPSLA, ``Employer'' also specifically
                identifies the following as an employer:
                 (A) An entity employing a State Employee described in section
                304(a) of the Government Employee Rights Act of 1991;
                 (B) An employing office, as defined in section 101 of the
                Congressional Accountability Act of 1995;
                 (C) An employing office, as defined in 3 U.S.C. 411(c); and
                 (D) An Executive Agency as defined in section 5 U.S.C. 105, and
                including the U.S. Postal Service and the Postal Regulatory Commission.
                 EPSLA. The term ``EPSLA'' means the Emergency Paid Sick Leave Act,
                Division E of the FFCRA.
                 Expanded Family and Medical Leave. The term ``Expanded Family and
                Medical Leave'' means paid leave under the EFMLEA.
                 FFCRA. The term ``FFCRA'' means the Families First Coronavirus
                Response Act, Public Law 116-127.
                 FLSA Terms. The terms ``employ'', ``person'', and ``State'' have
                the meanings given such terms in section 3 of the FLSA (29 U.S.C. 203).
                 Paid Sick Leave. The term ``Paid Sick Leave'' means paid leave
                under the EPSLA.
                 Place of Care. The term ``Place of Care'' means a physical location
                in which care is provided for the Employee's child while the Employee
                works for the Employer. The physical location does not have to be
                solely dedicated to such care. Examples include day care facilities,
                preschools, before and after school care programs, schools, homes,
                summer camps, summer enrichment programs, and respite care programs.
                 Public Agency. The term ``Public Agency'' means the Government of
                the United States; the government of a State or political subdivision
                thereof; any agency of the United States (including the United States
                Postal Service and Postal Regulatory Commission), a State, or a
                political subdivision of a State; or any interstate governmental
                agency. See 29 U.S.C. 203(x); 29 U.S.C. 5110(2)(B)(i)(III). A Public
                Agency shall be considered to be a person engaged in Commerce or in an
                industry or activity affecting Commerce. See 29 U.S.C. 2611(4)(B); 29
                U.S.C. 5110(2)(B)(ii). Whether an entity is a Public Agency, as
                distinguished from a private Employer, is determined by whether the
                agency has taxing authority, or whether the chief administrative
                officer or board, etc., is elected by the voters-at-large or their
                appointment is subject to approval by an elected official. See Sec.
                825.108 of this chapter.
                 Public Health Emergency. The term ``Public Health Emergency'' means
                an emergency with respect to COVID-19 declared by a Federal, State, or
                local authority.
                 School. The term ``School'' means an ``elementary school'' or
                ``secondary school'' as such terms are defined below, in accordance
                with section 8101 of the Elementary and Secondary Education Act of 1965
                (20 U.S.C. 7801). ``Elementary school'' means a nonprofit institutional
                day or residential school, including a public elementary charter school
                that provides elementary education, as determined under State law.
                ``Secondary school'' means a nonprofit institutional day or residential
                school, including a public secondary charter school that provides
                secondary education, as determined under State law, except that the
                term does not include any education beyond grade 12.
                 Secretary. The term ``Secretary'' means the Secretary of Labor or
                his or her designee.
                 Son or Daughter. The term ``Son or Daughter'' has the meaning given
                such term in section 101 of the FMLA (29 U.S.C. 2611). Accordingly, the
                term means a biological, adopted, or foster child, a stepchild, a legal
                ward, or a child of a person standing in loco parentis, who is under 18
                years of age; or 18 years of age or older who is incapable of self-care
                because of a mental or physical disability.
                 Subject to a quarantine or isolation order. For the purposes of the
                EPSLA, a quarantine or isolation order includes quarantine, isolation,
                containment, shelter-in-place, or stay-at-home orders issued by any
                Federal, State, or local government authority that cause the Employee
                to be unable to work even though his or her Employer has work that the
                Employee could perform but for the order. This also includes when a
                Federal, State, or local government authority has advised categories of
                citizens (e.g., of certain age ranges or of certain medical conditions)
                to shelter in place, stay at home, isolate, or quarantine, causing
                those categories of Employees to be unable to work even though their
                Employers have work for them.
                 Telework. The term ``Telework'' means work the Employer permits or
                allows an Employee to perform while the Employee is at home or at a
                location other than the Employee's normal workplace. An Employee is
                able to Telework if: His or her Employer has work for the Employee; the
                Employer permits the Employee to work from the
                [[Page 19349]]
                Employee's location; and there are no extenuating circumstances (such
                as serious COVID-19 symptoms) that prevent the Employee from performing
                that work. Telework may be performed during normal hours or at other
                times agreed by the Employer and Employee. Telework is work for which
                wages must be paid as required by applicable law and is not compensated
                as paid leave under the EPSLA or the EFMLEA. Employees who are
                teleworking for COVID-19 related reasons must be compensated for all
                hours actually worked and which the Employer knew or should have known
                were worked by the Employee. However, the provisions of Sec. 790.6 of
                this chapter shall not apply to Employees while they are teleworking
                for COVID-19 related reasons.
                 (b) Effective period. (1) This part became operational on April 1,
                2020, and effective on April 2, 2020.
                 (2) This part expires on December 31, 2020.
                Sec. 826.20 Paid Leave Entitlements.
                 (a) Qualifying reasons for Paid Sick Leave. (1) An Employer shall
                provide to each of its Employees Paid Sick Leave to the extent that
                Employee is unable to work due to any of the following reasons:
                 (i) The Employee is subject to a Federal, State, or local
                quarantine or isolation order related to COVID-19;
                 (ii) The Employee has been advised by a health care provider to
                self-quarantine due to concerns related to COVID-19;
                 (iii) The Employee is experiencing symptoms of COVID-19 and seeking
                medical diagnosis from a health care provider;
                 (iv) The Employee is caring for an individual who is subject to an
                order as described in this paragraph (a)(1)(i) or directed as described
                in this paragraph (a)(1)(ii);
                 (v) The Employee is caring for his or her Son or Daughter whose
                School or Place of Care has been closed for a period of time, whether
                by order of a State or local official or authority or at the decision
                of the individual School or Place of Care, or the Child Care Provider
                of such Son or Daughter is unavailable, for reasons related to COVID-
                19; or
                 (vi) The Employee has a substantially similar condition as
                specified by the Secretary of Health and Human Services, in
                consultation with the Secretary of the Treasury and the Secretary of
                Labor. The substantially similar condition may be defined at any point
                during the Effective Period. This rule became operational on April 1,
                2020, and will be effective April 2, 2020, to December 31, 2020.
                 (2) Subject to a Quarantine or Isolation Order. Any Employee
                Subject to a Quarantine or Isolation Order may take Paid Sick Leave for
                the reason described in paragraph (a)(1)(i) of this section only if,
                but for being subject to the order, he or she would be able to perform
                work that is otherwise allowed or permitted by his or her Employer,
                either at the Employee's normal workplace or by Telework. An Employee
                Subject to a Quarantine or Isolation Order may not take Paid Sick Leave
                where the Employer does not have work for the Employee as a result of
                the order or other circumstances.
                 (3) Advised by a health care provider to self-quarantine. For the
                purposes of this section, the term health care provider has the same
                meaning as that term is defined in Sec. 825.102 of this chapter. An
                Employee may take Paid Sick Leave for the reason described in paragraph
                (a)(1)(ii) of this section only if:
                 (i) A health care provider advises the Employee to self-quarantine
                based on a belief that--
                 (A) The Employee has COVID-19;
                 (B) The Employee may have COVID-19; or
                 (C) The Employee is particularly vulnerable to COVID-19; and
                 (ii) Following the advice of a health care provider to self-
                quarantine prevents the Employee from being able to work, either at the
                Employee's normal workplace or by Telework.
                 (4) Seeking medical diagnosis for COVID-19. An Employee may take
                Paid Sick Leave for the reason described in paragraph (a)(1)(iii) of
                this section if the Employee is experiencing any of the following
                symptoms:
                 (i) Fever;
                 (ii) Dry cough;
                 (iii) Shortness of breath; or
                 (iv) Any other COVID-19 symptoms identified by the U.S. Centers for
                Disease Control and Prevention.
                 (v) Any Paid Sick Leave taken for the reason described in paragraph
                (a)(1)(iii) of this subsection is limited to time the Employee is
                unable to work because the Employee is taking affirmative steps to
                obtain a medical diagnosis, such as making, waiting for, or attending
                an appointment for a test for COVID-19.
                 (5) Caring for an individual. For the purpose of paragraph
                (a)(1)(iv) of this section, ``individual'' 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.
                 (6) An Employee may not take Paid Sick Leave for the reason
                described in paragraph (a)(1)(iv) of this section unless, but for a
                need to care for an individual, the Employee would be able to perform
                work for his or her Employer, either at the Employee's normal workplace
                or by Telework. An Employee caring for an individual may not take Paid
                Sick Leave where the Employer does not have work for the Employee.
                 (7) An Employee may take Paid Sick Leave for the reason described
                in paragraph (a)(1)(iv) of this section if the Employee is unable to
                perform work for his or her Employer and if the individual depends on
                the Employee to care of him or her and is either:
                 (i) Subject to a Quarantine or Isolation Order as described in
                paragraph (a)(1)(ii) of this subsection; or
                 (ii) Has been advised to self-quarantine by a health care provider
                because of a belief that--
                 (A) The individual has COVID-19;
                 (B) The individual may have COVID-19 due to known exposure or
                symptoms
                 (C) The individual is particularly vulnerable to COVID-19.
                 (8) Caring for a Son or Daughter. An Employee has a need to take
                Paid Sick Leave if he or she is unable to work due to a need to care
                for his or her Son or Daughter whose School or Place of Care has been
                closed, or whose Child Care Provider is unavailable, for reasons
                related to COVID-19 only if no other suitable person is available to
                care for the Son or Daughter during the period of such leave.
                 (9) An Employee may not take Paid Sick Leave to care for his or her
                Son or Daughter unless, but for a need to care for the Son or Daughter,
                the Employee would be able to perform work for his or her Employer,
                either at the Employee's normal workplace or by Telework. An Employee
                caring for his or her Son or Daughter may not take Paid Sick Leave
                where the Employer does not have work for the Employee.
                 (b) Qualifying reason for Expanded Family and Medical Leave. An
                Eligible Employee may take Expanded Family and Medical Leave because he
                or she is unable to work due to a need to care for his or her Son or
                Daughter whose School or Place of Care has been closed, or whose Child
                Care Provider is unavailable, for reasons related to COVID-19. Eligible
                Employee has need to take Expanded Family and Medical Leave for this
                purpose only if no
                [[Page 19350]]
                suitable person is available to care for his or her Son or Daughter
                during the period of such leave.
                 (1) An Eligible Employee may not take Expanded Family and Medical
                Leave to care for his or her Son or Daughter unless, but for a need to
                care for an individual, the Eligible Employee would be able to perform
                work for his or her Employer, either at the Eligible Employee's normal
                workplace or by Telework. An Eligible Employee caring for his or her
                Son or Daughter may not take Expanded Family and Medical Leave where
                the Employer does not have work for the Eligible Employee.
                 (2) [Reserved]
                 (c) Impact on FLSA exemptions. The taking of Paid Sick Leave or
                Expanded Family and Medical Leave shall not impact an Employee's status
                or eligibility for any exemption from the requirements of section 6 or
                7, or both, of the FLSA.
                Sec. 826.21 Amount of Paid Sick Leave.
                 (a) Full-time Employees. (1) A full-time Employee is entitled to up
                to 80 hours of Paid Sick Leave.
                 (2) An Employee is considered to be a full-time Employee under this
                section if he or she is normally scheduled to work at least 40 hours
                each workweek.
                 (3) An Employee who does not have a normal weekly schedule under
                Sec. 826.21(a)(2) is considered to be a full-time Employee under this
                section if the average number of hours per workweek that the Employee
                was scheduled to work, including hours for which the Employee took
                leave of any type, is at least 40 hours per workweek over a period of
                time that is the lesser of:
                 (i) The six-month period ending on the date on which the Employee
                takes Paid Sick Leave; or
                 (ii) The entire period of the Employee's employment.
                 (b) Part-time Employees. An Employee who does not satisfy the
                requirements of Sec. 826.21(a) is considered to be a part-time
                Employee.
                 (1) If the part-time Employee has a normal weekly schedule, the
                Employee is entitled to up to the number of hours of Paid Sick Leave
                equal to the number of hours that the Employee is normally scheduled to
                work over two workweeks.
                 (2) If the part-time Employee lacks a normal weekly schedule under
                Sec. 826.21(b)(1), the number of hours of Paid Sick Leave to which the
                Employee is entitled is calculated as follows:
                 (i) If the part-time Employee has been employed for at least six
                months, the Employee is entitled to up to the number of hours of Paid
                Sick Leave equal to fourteen times the average number of hours that the
                Employee was scheduled to work each calendar day over the six-month
                period ending on the date on which the Employee takes Paid Sick Leave,
                including any hours for which the Employee took leave of any type.
                 (ii) If the part-time Employee has been employed for fewer than six
                months, the Employee is entitled to up to the number of hours of Paid
                Sick Leave equal to fourteen times the number of hours the Employee and
                the Employer agreed to at the time of hiring that the Employee would
                work, on average, each calendar day. If there is no such agreement, the
                Employee is entitled to up to the number of hours of Paid Sick Leave
                equal to fourteen times the average number of hours per calendar day
                that the Employee was scheduled to work over the entire period of
                employment, including hours for which the Employee took leave of any
                type.
                Sec. 826.22 Amount of Pay for Paid Sick Leave.
                 (a) Subject to Sec. 826.22(c), for each hour of Pick Sick Leave
                taken by an Employee for qualifying reasons set forth in sections Sec.
                826.20(a)(1) through(3), the Employer shall pay the higher of:
                 (1) The Employee's average regular rate as computed under Sec.
                826.25;
                 (2) The Federal minimum wage to which the Employee is entitled; or
                 (3) Any State or local minimum wage to which the Employee is
                entitled.
                 (b) Subject to Sec. 826.22(c), for each hour of Paid Sick Leave
                taken by an Employee for qualifying reasons set forth in Sec.
                826.20(a)(4) through (6), the Employer shall pay the Employee two-
                thirds of the amount described in Sec. 826.24(a).
                 (c) Limitations on payments:
                 (1) In no event shall an Employer be required to pay more than $511
                per day and $5,110 in the aggregate per Employee when an Employee takes
                Paid Sick Leave for qualifying reasons set forth in sections Sec.
                826.20(a)(1) through (3).
                 (2) In no event shall an Employer be required to pay more than $200
                per day and $2,000 in the aggregate per Employee when an Employee takes
                Paid Sick Leave for qualifying reasons set forth in sections Sec.
                826.20(a)(4) through (6).
                Sec. 826.23 Amount of Expanded Family and Medical Leave.
                 (a) An Eligible Employee is entitled to take up to twelve workweeks
                of Expanded Family and Medical Leave during the period April 1, 2020
                through December 31, 2020.
                 (b) Any time period of Expanded Family and Medical Leave that an
                Eligible Employee takes counts towards the twelve workweeks of FMLA
                leave to which the Eligible Employee is entitled for any qualifying
                reason in a twelve-month period under Sec. 825.200 of this chapter,
                see Sec. 826.70.
                 (c) Section 2612(d)(2)(A) of the FMLA shall be applied, provided
                however, that the Eligible Employee may elect, and the Employer may
                require the Eligible Employee, to use only leave that would be
                available to the Eligible Employee for the purpose set forth in Sec.
                826.20(b) under the Employer's existing policies, such as personal
                leave or paid time off. Any leave that an Eligible Employee elects to
                use or that an Employer requires the Eligible Employee to use would run
                concurrently with Expanded Family and Medical Leave taken under this
                section.
                Sec. 826.24 Amount of pay for Expanded Family and Medical Leave.
                 Subject to Sec. 826.60, after the initial two weeks of Expanded
                Family and Medical Leave, the Employer shall pay the Eligible Employee
                two-thirds of the Eligible Employee's average regular rate, as computed
                under Sec. 826.25, times the Eligible Employee's scheduled number of
                hours for each day of such leave taken.
                 (a) In no event shall an Employer be required to pay more than $200
                per day and $10,000 in the aggregate per Eligible Employee when an
                Eligible Employee takes Expanded Family and Medical Leave for up to ten
                weeks after the initial two-week period of unpaid Expanded Family and
                Medical Leave.
                 (b) For the purpose of this section, the ``scheduled number of
                hours'' is determined as follows:
                 (1) If the Eligible Employee has a normal work schedule, the number
                of hours the Eligible Employee is normally scheduled to work on that
                workday;
                 (2) If the Eligible Employee has a work schedule that varies to
                such an extent that an Employer is unable to determine the number of
                hours the Eligible Employee would have worked on the day for which
                leave is taken and has been employed for at least six months, the
                average number of hours the Eligible Employee was scheduled to work
                each workday, over the six-month period ending on the date on which the
                Eligible Employee first takes Expanded Family and Medical Leave,
                including hours for which the Eligible Employee took leave of any type;
                or
                 (3) If the Eligible Employee has a work schedule that varies to
                such an extent that an Employer is unable to determine the number of
                hours the Eligible Employee would have worked on the day for which
                leave is taken and
                [[Page 19351]]
                the Eligible Employee has been employed for fewer than six months, the
                average number of hours the Eligible Employee and the Employer agreed
                at the time of hiring that the Eligible Employee would work each
                workday. If there is no such agreement, the scheduled number of hours
                is equal to the average number of hours per workday that the Eligible
                Employee was scheduled to work over the entire period of employment,
                including hours for which the Eligible Employee took leave of any type.
                 (c) As an alternative, the amount of pay for Expanded Family and
                Medical Leave may be computed in hourly increments instead a full day.
                For each hour of Expanded Family and Medical Leave taken after the
                first two weeks, the Employer shall pay the Eligible Employee two-
                thirds of the Eligible Employee's average regular rate, as computed
                under Sec. 826.25.
                 (d) Notwithstanding paragraph (a) of this section, if an Eligible
                Employee elects or is required to use leave available to the Eligible
                Employee for the purpose set forth in Sec. 826.20(b) under the
                Employer's policies, such as vacation or personal leave or paid time
                off, concurrently with Expanded Family and Medical Leave, the Employer
                must pay the Eligible Employee a full day's pay for that day. However,
                the Employer is capped at taking $200 a day or $10,000 in the aggregate
                in tax credits for Expanded Family and Medical Leave paid under the
                EFMLEA.
                Sec. 826.25 Calculating the Regular Rate under the Family First
                Coronavirus Response Act.
                 (a) Average regular rate. The ``average regular rate'' used to
                compute pay for Paid Sick Leave and Expanded Family and Medical Leave
                is calculated as follows:
                 (1) Use the methods contained in parts 531 and 778 of this chapter
                to compute the regular rate for each full workweek in which the
                Employee has been employed over the lesser of:
                 (i) The six-month period ending on the date on which the Employee
                takes Paid Sick Leave or Expanded Family and Medical Leave; or
                 (ii) The entire period of employment.
                 (2) Compute the average of the weekly regular rates under paragraph
                (a)(1) of this section, weighted by the number of hours worked for each
                workweek.
                 (b) Calculating the regular rate for commissions, tips, and piece
                rates. An Employee's commissions, tips, and piece rates are
                incorporated into the regular rate for purposes of the FFCRA to the
                same extent that they are included in the calculation of the regular
                rate under the FLSA, and Sec. 531.60 and part 778 of this chapter.
                Sec. 826.30 Employee eligibility for leave.
                 (a) Eligibility under the EPSLA. All Employees of an Employer are
                eligible for Paid Sick Leave under the EPSLA, except as provided in
                paragraphs (c) and (d) of this section and in Sec. 826.40(b).
                 (b) Eligibility under the EFMLEA. All Employees employed by an
                Employer for at least thirty calendar days are eligible for Expanded
                Family and Medical Leave under the EFMLEA, except as provided in
                paragraphs (c) and (d) in this section and in Sec. 826.40(b).
                 (1) An Employee is considered to have been employed by an Employer
                for at least thirty calendar days if:
                 (i) The Employer had the Employee on its payroll for the thirty
                calendar days immediately prior to the day that the Employee's leave
                would begin; or
                 (ii) The Employee was laid off or otherwise terminated by the
                Employer on or after March 1, 2020, and rehired or otherwise reemployed
                by the Employer on or before December 31, 2020, provided that the
                Employee had been on the Employer's payroll for thirty or more of the
                sixty calendar days prior to the date the Employee was laid off or
                otherwise terminated.
                 (2) If an Employee employed by a temporary placement agency is
                subsequently hired by the Employer, the Employer will count the days
                worked as a temporary Employee at the Employer toward the thirty-day
                eligibility period.
                 (3) An Employee who has been employed by a covered Employer for at
                least thirty calendar days is eligible for Expanded Family and Medical
                Leave under the EFMLEA regardless of whether the Employee would
                otherwise be eligible for leave under the FMLA. Thus, for example, an
                Employee need not have been employed for 1,250 hours of service and
                twelve months of employment as otherwise required under the FMLA, see
                Sec. 825.110(a)(1)(2) of this chapter, to be eligible for leave under
                the EFMLEA.
                 (c) Exclusion of Employees who are health care providers and
                emergency responders. An Employer whose Employee is a health care
                provider or an emergency responder may exclude such Employee from the
                EPSLA's Paid Sick Leave requirements and/or the EFMLEA's Expanded
                Family and Medical Leave requirements.
                 (1) Health care provider--
                 (i) For the purposes of this definition Employees who may be
                exempted from Paid Sick Leave or Expanded Family and Medical Leave by
                their Employer under the FFCRA, a health care provider is anyone
                employed at any doctor's office, hospital, health care center, clinic,
                post-secondary educational institution offering health care
                instruction, medical school, local health department or agency, nursing
                facility, retirement facility, nursing home, home health care provider,
                any facility that performs laboratory or medical testing, pharmacy, or
                any similar institution, Employer, or entity. This includes any
                permanent or temporary institution, facility, location, or site where
                medical services are provided that are similar to such institutions.
                 (ii) This definition includes any individual employed by an entity
                that contracts with any of these institutions described above to
                provide services or to maintain the operation of the facility where
                that individual's services support the operation of the facility. This
                also includes anyone employed by any entity that provides medical
                services, produces medical products, or is otherwise involved in the
                making of COVID-19 related medical equipment, tests, drugs, vaccines,
                diagnostic vehicles, or treatments. This also includes any individual
                that the highest official of a State or territory, including the
                District of Columbia, determines is a health care provider necessary
                for that State's or territory's or the District of Columbia's response
                to COVID-19.
                 (iii) Application limited to leave under the EPSLA and the EFMLEA.
                The definition of ``health care provider'' contained in this subsection
                applies only for the purpose of determining whether an Employer may
                elect to exclude an Employee from taking leave under the EPSLA and/or
                the EFMLEA, and does not otherwise apply for purposes of the FMLA or
                section 5102(A)(2) of the EPSLA.
                 (2) Emergency responders--
                 (i) For the purposes of Employees who may be excluded from Paid
                Sick Leave or Expanded Family and Medical Leave by their Employer under
                the FFCRA, an emergency responder is anyone necessary for the provision
                of transport, care, healthcare, comfort and nutrition of such patients,
                or others needed for the response to COVID-19. This includes but is not
                limited to military or national guard, law enforcement officers,
                correctional institution personnel, fire fighters, emergency medical
                services personnel, physicians, nurses, public health personnel,
                emergency medical technicians, paramedics, emergency management
                personnel, 911 operators, child welfare workers and service providers,
                public works personnel, and persons with skills or training in
                operating specialized equipment or other skills needed to provide aid
                in a
                [[Page 19352]]
                declared emergency, as well as individuals who work for such facilities
                employing these individuals and whose work is necessary to maintain the
                operation of the facility. This also includes any individual whom the
                highest official of a State or territory, including the District of
                Columbia, determines is an emergency responder necessary for that
                State's or territory's or the District of Columbia's response to COVID-
                19.
                 (ii) [Reserved]
                 (d) Exclusion by OMB. The Director of the Office of Management and
                Budget (OMB) has authority to exclude, for good cause, certain U.S.
                Government Employers with respect to certain categories of Executive
                Branch Eligible Employees from the requirement to provide paid leave
                under the EFMLEA. See CARES Act section 4605.
                 (e) The Director of the OMB has authority to exclude certain
                Employees, for good cause, from the definition of ``Employee'' for
                purposes of the EPSLA. See CARES Act section 4605. The categories of
                Employees the Director of the OMB has authority to so exclude from
                EPSLA are:
                 (1) Federal officers or Employees covered under Title II of the
                FMLA (which is codified in subchapter V of chapter 63 of title 5 of the
                United States Code);
                 (2) Other individuals occupying a position in the civil service (as
                that term is defined in 5 U.S.C. 2101(1)); and
                 (3) Employees of a United States Executive Agency, as defined in 5
                U.S.C. 105, including the U.S. Postal Service and U.S. Postal
                Regulatory Commission.
                Sec. 826.40 Employer coverage.
                 (a) Private Employers. Any private entity or individual who employs
                fewer than 500 Employees must provide Paid Sick Leave and Expanded
                Family and Medical Leave, except as provided in paragraph (b) of this
                section or in Sec. 826.30(c).
                 (1) To determine the number of Employees employed, the Employer
                must count all full-time and part-time Employees employed within the
                United States at the time the Employee would take leave. For purposes
                of this count, every part-time Employee is counted as if he or she were
                a full-time Employee.
                 (i) For this purpose, ``within the United States'' means any State
                within the United States, the District of Columbia, or any Territory or
                possession of the United States.
                 (ii) The number of Employees includes:
                 (A) All Employees currently employed, regardless of how long those
                Employees have worked for the Employer;
                 (B) Any Employees on leave of any kind;
                 (C) Employees of temporary placement agencies who are jointly
                employed under the FLSA, see part 791 of this chapter, by the Employer
                and another Employer (regardless of which Employer's payroll the
                Employee appears on); and
                 (D) Day laborers supplied by a temporary placement agency
                (regardless of whether the Employer is the temporary placement agency
                or the client firm).
                 (iii) The number of Employees does not include workers who are
                independent contractors, rather than Employees, under the FLSA. Nor
                does the number of Employees include workers who have been laid off or
                furloughed and have not subsequently been reemployed.
                 (2) To determine the number of Employees employed, all common
                Employees of joint employers or all Employees of integrated employers
                must be counted together.
                 (i) Typically, a corporation (including its separate establishments
                or divisions) is considered a single Employer and all of its Employees
                must be counted together.
                 (ii) Where one corporation has an ownership interest in another
                corporation, the two corporations are separate Employers unless they
                are joint employers under the FLSA, see part 791 of this chapter, with
                respect to certain Employees.
                 (iii) In general, two or more entities are separate Employers
                unless they meet the integrated employer test under the FMLA. See Sec.
                825.104(c)(2) of this chapter. If two entities are an integrated
                employer under this test, then Employees of all entities making up the
                integrated employer must be counted.
                 (b) Exemption from requirement to provide leave under the EPSLA
                Section 5102(a)(5) and the EFMLEA for Employers with fewer than 50
                Employees.
                 (1) An Employer, including a religious or nonprofit organization,
                with fewer than 50 Employees (small business) is exempt from providing
                Paid Sick Leave under the EPSLA and Expanded Family and Medical Leave
                under the EFMLEA when the imposition of such requirements would
                jeopardize the viability of the business as a going concern. A small
                business under this section is entitled to this exemption if an
                authorized officer of the business has determined that:
                 (i) The leave requested under either section 102(a)(1)(F) of the
                FMLA or section 5102(a)(5) of the EPSLA 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;
                 (ii) The absence of the Employee or Employees requesting leave
                under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of
                the EPSLA would entail a substantial risk to the financial health or
                operational capabilities of the business because of their specialized
                skills, knowledge of the business, or responsibilities; or
                 (iii) 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 leave under either section 102(a)(1)(F) of the FMLA or
                section 5102(a)(5) of the EPSLA, and these labor or services are needed
                for the small business to operate at a minimal capacity.
                 (2) To elect this small business exemption, the Employer must
                document that a determination has been made pursuant to the criteria
                set forth by the Department in Sec. 826.40(b)(1). The Employer should
                not send such documentation to the Department, but rather retain the
                records in its files.
                 (3) Regardless of whether a small Employer chooses to exempt one or
                more Employees, the Employer is still required to post a notice
                pursuant to Sec. 826.80.
                 (c) Public Employers. (1) Any public Employer must provide its
                Employees Paid Sick Leave except as provided in Sec. 826.30(c) through
                (d).
                 (2) Any public Employer must provide its Eligible Employees
                Expanded Family and Medical Leave, except as provided in paragraph
                (c)(3) of this section and in Sec. 826.30(c) through (d).
                 (3) The EFMLEA amended only Title I of the FMLA, resulting in a
                divide in coverage as to Employees of the United States and of agencies
                of the United States (Federal Employees). Federal Employees covered by
                Title I of the FMLA are eligible for Expanded Family and Medical Leave.
                But most Federal Employees are instead covered under Title II of the
                FMLA, which was not amended by the EFMLEA. Such Federal Employees are
                not within the EFMLEA's purview and are therefore not eligible for
                Expanded Family and Medical Leave. The Federal Employees covered by
                Title I of the FMLA are therefore eligible for Expanded Family and
                Medical Leave, subject to the limitations and exceptions set forth in
                Sec. 826.30(b) through (d), including:
                [[Page 19353]]
                 (i) Employees of the U.S. Postal Service;
                 (ii) Employees of the U.S. Postal Regulatory Commission;
                 (iii) Part-time Employees who do not have an established regular
                tour of duty during the administrative workweek;
                 (iv) Employees serving under an intermittent appointment or
                temporary appointment with a time limitation of one year or less;
                 (v) Employees of the Government Accountability Office;
                 (vi) Employees of the Library of Congress; and
                 (vii) Other Federal Employees not covered by Title II of the FMLA.
                Sec. 826.50 Intermittent leave.
                 (a) General Rule. Subject to the conditions and applicable limits,
                an Employee may take Paid Sick Leave or Expanded Family and Medical
                Leave intermittently (i.e., in separate periods of time, rather than
                one continuous period) only if the Employer and Employee agree. The
                Employer and Employee may memorialize in writing any agreement under
                this section, but a clear and mutual understanding between the parties
                is sufficient.
                 (b) Reporting to Worksite. The ability of an Employee to take Paid
                Sick Leave or Expanded Family and Medical Leave intermittently while
                reporting to an Employer's worksite depends upon the reason for the
                leave.
                 (1) If the Employer and Employee agree, an Employee may take up to
                the entire portion of Paid Sick Leave or Expanded Family and Medical
                Leave intermittently to care for the Employee's Son or Daughter whose
                School or Place of Care is closed, or Child Care Provider is
                unavailable, because of reasons related to COVID-19. Under such
                circumstances, intermittent Paid Sick Leave or paid Expanded Family and
                Medical Leave may be taken in any increment of time agreed to by the
                Employer and Employee.
                 (2) An Employee may not take Paid Sick Leave intermittently if the
                leave is taken for any of the reasons specified in Sec.
                826.20(a)(1)(i) through (iv) and (vi). Once the Employee begins taking
                Paid Sick Leave for one or more of such reasons, the Employee must use
                the permitted days of leave consecutively until the Employee no longer
                has a qualifying reason to take Paid Sick Leave.
                 (c) Teleworking. If an Employer directs or allows an Employee to
                Telework, or the Employee normally works from home, the Employer and
                Employee may agree that the Employee may take Paid Sick Leave for any
                qualifying reason or Expanded Family and Medical Leave intermittently,
                and in any agreed increment of time (but only when the Employee is
                unavailable to Telework because of a COVID-19 related reason).
                 (d) Calculation of Leave. If an Employee takes Paid Sick Leave or
                Expanded Family and Medical Leave intermittently as the Employee and
                Employer have agreed, only the amount of leave actually taken may be
                counted toward the Employee's leave entitlements. For example, an
                Employee who normally works forty hours in a workweek only takes three
                hours of leave each work day (for a weekly total of fifteen hours) has
                only taken fifteen hours of the Employee's Paid Sick Leave or 37.5% of
                a workweek of the Employee's Expanded Family and Medical Leave.
                Sec. 826.60 Leave to care for a Child due to School or Place of Care
                Closure or Child Care unavailability--intersection between the EPSLA
                and the EFMLEA.
                 (a) An Eligible Employee who needs leave to care for his or her Son
                or Daughter whose School or Place of Care is closed, or whose Child
                Care Provider is unavailable, due to COVID-19 related reasons may be
                eligible to take leave under both the EPSLA and the EFMLEA. If so, the
                benefits provided by the EPSLA run concurrently with those provided
                under the EFMLEA.
                 (1) Intersection between the EPSLA and the EFMLEA. An Eligible
                Employee may take up to twelve weeks of Expanded Family and Medical
                Leave to care for his or her Son or Daughter whose School or Place of
                Care has been closed, or whose Child Care Provider is unavailable, due
                to COVID-19 related reasons.
                 (2) The first two weeks of leave (up to 80 hours) may be paid under
                the EPSLA; the subsequent weeks are paid under the EFMLEA.
                 (3) An Employee's prior use of Paid Sick Leave under EPSLA will
                impact the amount of Paid Sick Leave that remains available to the
                Employee.
                 (4) An Eligible Employee who has exhausted his or her twelve
                workweek FMLA entitlement, see Sec. 826.70, is not precluded from
                taking Paid Sick Leave.
                 (b) Supplementing Expanded Family and Medical Leave with other
                accrued Employer-provided leave.
                 (1) Where an Eligible Employee takes Expanded Family and Medical
                Leave after taking all or part of his or her Paid Sick Leave for a
                reason other than that provided in Sec. 826.20(a)(1)(v), all or part
                of the Eligible Employee's first ten days (or first two weeks) of
                Expanded Family and Medical Leave may be unpaid because the Eligible
                Employee will have exhausted his or her Paid Sick Leave entitlement.
                 (2) Under the circumstances in (b)(1) of this section, the Eligible
                Employee may choose to substitute earned or accrued paid leave provided
                by the Employer during this period. The term substitute means that the
                preexisting paid leave provided by the Employer, which has been earned
                or accrued pursuant to established policies of the Employer, will run
                concurrently with the unpaid Expanded Family and Medical Leave.
                Accordingly, the Eligible Employee receives pay pursuant to the
                Employer's preexisting paid leave policy during the period of otherwise
                unpaid Expanded Family and Medical Leave.
                 (3) If the Eligible Employee does not elect to substitute paid
                leave for unpaid Expanded Family and Medical Leave under the above
                conditions and circumstances, the Eligible Employee will remain
                entitled to any paid leave that the Eligible Employee has earned or
                accrued under the terms of his or her Employer's plan.
                Sec. 826.70 Leave to care for a Child due to School or Place of Care
                closure or Child Care unavailability--intersection of the EFMLEA and
                the FMLA.
                 (a) Certain employees are entitled to a total of twelve workweeks
                of FMLA leave in the twelve-month period defined in Sec. 825.200(b) of
                this chapter for the following reasons:
                 (1) The birth of the employee's son or daughter, and to care for
                the newborn child;
                 (2) The placement with the employee of a son or daughter for
                adoption or foster care, and to care for the newly placed child;
                 (3) To care for the employee's spouse, son, daughter, or parent
                with a serious health condition;
                 (4) Because of a serious health condition that makes the employee
                unable to perform one or more of the essential functions of his or her
                job;
                 (5) Because of any qualifying exigency arising out of the fact that
                the employee's spouse, son, daughter, or parent is a military member on
                covered active duty status (or has been notified of an impending call
                or order to covered active duty); and
                 (6) To care for the Eligible Employee's Son or Daughter whose
                School or Place of Care is closed, or Child Care Provider is
                unavailable, due to COVID-19 related reasons.
                 (b) If an Eligible Employee has already taken some FMLA leave for
                reasons (a)(1) through (5) during the twelve-month period, the Eligible
                Employee may take up to the remaining portion of
                [[Page 19354]]
                the twelve workweek leave for Expanded Family and Medical Leave. If an
                Eligible Employee has already taken the full twelve workweeks of FMLA
                leave during the twelve-month period, the Eligible Employee may not
                take Expanded Family and Medical Leave. An Eligible Employee's
                entitlement to take up to two weeks of Paid Sick Leave under the EPSLA
                is not impacted by the Eligible Employee's use of FMLA leave. For
                example, if an Eligible Employee used his or her full FMLA leave
                entitlement for birth and bonding with a newborn, he or she would still
                be entitled to take Paid Sick Leave (for any covered reason), but could
                not take Expanded Family and Medical Leave in the same twelve-month
                period if his or her child's day care closed due to COVID-19 related
                reasons.
                 (c) If an Eligible Employee takes fewer than twelve weeks of
                Expanded Family and Medical Leave, the Employee may take up to the
                remaining portion of the twelve weeks FMLA leave entitlement for
                reasons described in paragraphs (a)(1) through (5) of this section. For
                example, if an Eligible Employee takes eight weeks of Expanded Family
                and Medical Leave to care for his or her Son or Daughter whose School
                is closed due to COVID-19 related reasons, he or she could take up to
                four workweeks of unpaid FMLA leave for his or her own serious health
                condition later in the twelve-month period.
                 (d) If an employee has taken FMLA leave to care for a covered
                service member with a serious injury or illness, the remaining FMLA
                leave entitlement that may be used for Expanded Family and Medical
                Leave is calculated in accordance with Sec. 825.127(e) of this
                chapter.
                 (e) An Eligible Employee can take a maximum of twelve workweeks of
                Expanded Family and Medical Leave during the period in which the leave
                may be taken (April 2, 2020 to December 31, 2020) even if that period
                spans two FMLA leave twelve-month periods. For example, if an
                Employer's twelve-month period begins on July 1, and an Eligible
                Employee took seven weeks of Expanded Family and Medical Leave in May
                and June, 2020, the Eligible Employee could only take up to five
                additional weeks of Expanded Family and Medical Leave between July 1
                and December 31, 2020, even though the first seven weeks of Expanded
                Family and Medical Leave fell in the prior twelve-month period.
                 (f) The first two weeks of Expanded Family and Medical Leave may be
                unpaid and the Eligible Employee may substitute Paid Sick Leave under
                the EPSLA at two-thirds the Employee's regular rate of pay or accrued
                paid leave provided by the Employer during this period (see Sec.
                826.60). After the first two weeks of leave, Expanded Family and
                Medical Leave is paid at two-thirds the Eligible Employee's regular
                rate of pay, up to $200 per day per Eligible Employee. Because this
                period of Expanded Family and Medical Leave is not unpaid, the FMLA
                provision for substitution of the Employee's accrued paid leave is
                inapplicable, and neither the Eligible Employee nor the Employer may
                require the substitution of paid leave. However, Employers and Eligible
                Employees may agree, where Federal or state law permits, to have paid
                leave supplement pay under the EFMLEA so that the Employee receives the
                full amount of his or her normal pay. For example, an Eligible Employee
                and Employer may agree to supplement the Expanded Family and Medical
                Leave by substituting one-third hour of accrued vacation leave for each
                hour of Expanded Family and Medical Leave. If the Eligible Employee and
                Employer do not agree to supplement paid leave in the manner described
                above, the Employee will remain entitled to all the paid leave which is
                earned or accrued under the terms of the Employer's plan for later use.
                This option is not available to Federal agencies if such partial leave
                payment would be contrary to a governing statute or regulation.
                Sec. 826.80 Employer notice.
                 (a) Every Employer covered by FFCRA's paid leave provisions is
                required to post and keep posted on its premises, in conspicuous places
                a notice explaining the FFCRA's paid leave provisions and providing
                information concerning the procedures for filing complaints of
                violations of the FFCRA with the Wage and Hour Division.
                 (b) An Employer may satisfy this requirement by emailing or direct
                mailing this notice to Employees, or posting this notice on an Employee
                information internal or external website.
                 (c) To meet the requirements of paragraph (a) of this section,
                Employers may duplicate the text of the Department's model notice (WHD
                1422 REV 03/20) or may use another format so long as the information
                provided includes, at a minimum, all of the information contained in
                that notice. Prototypes are available at www.dol.gov/whd. Employers
                furnishing notices to sensory-impaired individuals must also comply
                with all applicable requirements under Federal or State law.
                 (d) This section does not require translation or provision of the
                notice in languages other than English.
                 (e) For Employers who are covered by the EFMLEA but are not covered
                by the other provisions of the FMLA, posting of this FFCRA notice
                satisfies their FMLA general notice obligation. See 29 U.S.C. 2619;
                Sec. 825.300 of this chapter.
                Sec. 826.90 Employee notice of need for leave.
                 (a) Requirement to provide notice. (1) An Employer may require an
                Employee to follow reasonable notice procedures after the first workday
                (or portion thereof) for which an Employee takes Paid Sick Leave for
                any reason other than that described in Sec. 826.20(a)(1)(v). Whether
                a procedure is reasonable will be determined under the facts and
                circumstances of each particular case. Nothing in this section
                precludes an Employee from offering notice to an Employer sooner; the
                Department encourages, but does not require, Employees to notify
                Employers about their request for Paid Sick Leave or Expanded Family
                and Medical Leave as soon as practicable. If an Employee fails to give
                proper notice, the Employer should give him or her notice of the
                failure and an opportunity to provide the required documentation prior
                to denying the request for leave.
                 (2) In any case where an Employee requests leave in order to care
                for the Employee's Son or Daughter whose School or Place of Care is
                closed, or Child Care Provider is unavailable, due to COVID-19 related
                reasons, if that leave was foreseeable, an Employee shall provide the
                Employer with notice of such Paid Sick Leave or Expanded Family and
                Medical Leave as soon as practicable. If an Employee fails to give
                proper notice, the Employer should give him or her notice of the
                failure and an opportunity to provide the required documentation prior
                to denying the request for leave.
                 (b) Timing and delivery of notice. Notice may not be required in
                advance, and may only be required after the first workday (or portion
                thereof) for which an Employee takes Paid Sick Leave or Expanded Family
                and Medical Leave. After the first workday, it will be reasonable for
                an Employer to require notice as soon as practicable under the facts
                and circumstances of the particular case. Generally, it will be
                reasonable for notice to be given by the Employee's spokesperson (e.g.,
                spouse, adult family member, or other responsible party) if the
                Employee is unable to do so personally.
                 (c) Content of notice. Generally, it will be reasonable for an
                Employer to require oral notice and sufficient information for an
                Employer to determine whether the requested leave is covered by the
                [[Page 19355]]
                EPSLA or the EFMLEA. An Employer may not require the notice to include
                documentation beyond what is allowed by Sec. 826.100.
                 (d) Complying with Employer policy. Generally, it will be
                reasonable for the Employer to require the Employee to comply with the
                Employer's usual and customary notice and procedural requirements for
                requesting leave, absent unusual circumstances.
                Sec. 826.100 Documentation of need for leave.
                 (a) An Employee is required to provide the Employer documentation
                containing the following information prior to taking Paid Sick Leave
                under the EPSLA or Expanded Family and Medical Leave under the EFMLEA:
                 (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.
                 (b) To take Paid Sick Leave for a qualifying COVID-19 related
                reason under Sec. 826.20(a)(1)(i), an Employee must additionally
                provide the Employer with the name of the government entity that issued
                the Quarantine or Isolation Order.
                 (c) To take Paid Sick Leave for a qualifying COVID-19 related
                reason under Sec. 826.20(a)(1)(ii) an Employee must additionally
                provide the Employer with the name of the health care provider who
                advised the Employee to self-quarantine due to concerns related to
                COVID-19.
                 (d) To take Paid Sick Leave for a qualifying COVID-19 related
                reason under Sec. 826.20(a)(1)(iii) an Employee must additionally
                provide the Employer with either:
                 (1) The name of the government entity that issued the Quarantine or
                Isolation Order to which the individual being care for is subject; or
                 (2) The name of the health care provider who advised the individual
                being cared for to self-quarantine due to concerns related to COVID-19.
                 (e) To take Paid Sick Leave for a qualifying COVID-19 related
                reason under Sec. 826.20(a)(1)(v) or Expanded Family and Medical
                Leave, an Employee must additionally provide:
                 (1) The name of the Son or Daughter 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 Son or Daughter during the period for which the Employee takes
                Paid Sick Leave or Expanded Family and Medical Leave.
                 (f) The Employer may also request an Employee to provide such
                additional material as needed for the Employer to support a request for
                tax credits pursuant to the FFCRA. The Employer is not required to
                provide leave if materials sufficient to support the applicable tax
                credit have not been provided. For more information, please consult
                https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.
                Sec. 826.110 Health care coverage.
                 (a) While an Employee is taking Paid Sick Leave or Expanded Family
                and Medical Leave, an Employer must maintain the Employee's coverage
                under any group health plan (as defined in the Internal Revenue Code of
                1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as coverage would
                have been provided if the Employee had been continuously employed
                during the entire leave period. All Employers covered by the EPSLA or
                the EFMLEA are subject to the requirement to maintain health coverage.
                The term ``group health plan'' has the same meaning as under the FMLA
                (see Sec. 825.102 of this chapter). Maintenance of individual health
                insurance policies purchased by an Employee from an insurance provider,
                as described in Sec. 825.209(a) of this chapter, is the responsibility
                of the Employee.
                 (b) The same group health plan benefits provided to an Employee
                prior to taking Paid Sick Leave or Expanded Family and Medical Leave
                must be maintained while an Employee is taking Paid Sick Leave or
                Expanded Family and Medical Leave. For example, if family member
                coverage is provided to an Employee, family member coverage must be
                maintained while an Employee is taking Paid Sick Leave or Expanded
                Family and Medical Leave. Similarly, benefit coverage for medical care,
                surgical care, hospital care, dental care, eye care, mental health
                counseling, substance abuse treatment, etc., must be maintained while
                an Employee is taking Paid Sick Leave or Expanded Family and Medical
                Leave if provided in an Employer's group health plan, including a
                supplement to a group health plan, whether or not provided through a
                flexible spending account or other component of a cafeteria plan.
                 (c) If an Employer provides a new health plan or benefits or
                changes health benefits or plans while an Employee is taking Paid Sick
                Leave or Expanded Family and Medical Leave, the Employee is entitled to
                the new or changed plan/benefits to the same extent as if the Employee
                was not on leave. Any other plan changes (e.g., in coverage, premiums,
                deductibles, etc.) which apply to all Employees of the workforce would
                also apply to Employees taking Paid Sick Leave or Expanded Family and
                Medical Leave.
                 (d) Notice of any opportunity to change plans or benefits must also
                be given to an Employee taking Paid Sick Leave or Expanded Family and
                Medical Leave. If the Employee requests the changed coverage, the
                Employer must provide it.
                 (e) An Employee remains responsible for paying his or her portion
                of group health plan premiums which had been paid by the Employee prior
                to taking Paid Sick Leave or Expanded Family and Medical Leave. If
                premiums are raised or lowered, the Employee would be required to pay
                the new Employee premium contribution on the same terms as other
                Employees. The Employee's share of premiums must be paid by the method
                normally used during any paid leave, presumably as a payroll deduction.
                If leave is unpaid, or the Employee's pay during leave is insufficient
                to cover the Employee's share of the premiums, the Employer may obtain
                payment from the Employee in accordance with Sec. 825.210(c) of this
                chapter.
                 (f) An Employee may choose not to retain group health plan coverage
                while an Employee is taking Paid Sick Leave or Expanded Family and
                Medical Leave. However, when an Employee returns from leave, the
                Employee is entitled to be reinstated on the same terms as prior to
                taking the leave, including family or dependent coverages, without any
                additional qualifying period, physical examination, exclusion of pre-
                existing conditions, etc.
                 (g) Except as required by the Consolidated Omnibus Budget
                Reconciliation Act of 1986 (COBRA), an Employer's obligation to
                maintain health benefits while an Employee is taking Paid Sick Leave or
                Expanded Family and Medical Leave ceases under this section if and when
                the employment relationship would have terminated if the Employee had
                not taken Paid Sick Leave or Expanded Family and Medical Leave (e.g.,
                if the Employee fails to return from leave, or if the entitlement to
                leave ceases because an Employer closes its business).
                Sec. 826.120 Multiemployer plans.
                 (a) Paid Sick Leave. In accordance with its existing collective
                bargaining obligations, an Employer signatory to a
                [[Page 19356]]
                multiemployer collective bargaining agreement may satisfy its
                obligations to provide Paid Sick Leave by making contributions to a
                multiemployer fund, plan, or other program. Such contributions must be
                based on the hours of Paid Sick Leave to which each Employee is
                entitled under the EPSLA according to each Employee's work under the
                multi-employer collective bargaining agreement.
                 (b) Expanded Family and Medical Leave. In accordance with its
                existing collective bargaining obligations, an Employer signatory to a
                multiemployer collective bargaining agreement may satisfy its
                obligations to provide Expanded Family and Medical Leave by making
                contributions to a multiemployer fund, plan, or other program. Such
                contributions must be based on the hours of paid family and medical
                leave to which each Eligible Employee is entitled under the EFMLEA,
                according to each Eligible Employee's work under the multiemployer
                collective bargaining agreement.
                 (c) Employee access. Any multiemployer fund, plan, or program under
                section (a) or (b) of this section must enable or otherwise allow
                Employees to secure payments for Paid Sick Leave or Expanded Family and
                Medical Leave. If the multiemployer fund, plan, or program does not
                enable or otherwise allow Employees to secure payments for paid leave
                to which they are entitled under the FFCRA based on their work under
                the multiemployer collective bargaining agreement, the multiemployer
                fund, plan, or program does not satisfy the requirements of the FFCRA.
                 (d) Alternative means of compliance. In accordance with its
                existing collective bargaining obligations, an Employer signatory to a
                multiemployer collective bargaining agreement may satisfy its
                obligations to provide Paid Sick Leave under the EPSLA or Expanded
                Family and Medical Leave under the EFMLEA by means other than those set
                forth in paragraph (a) and (b) of this section, provided such means are
                consistent with its existing bargaining obligations and any applicable
                collective bargaining agreement.
                Sec. 826.130 Return to work.
                 (a) General rule. On return from Paid Sick Leave or Expanded Family
                and Medical Leave, an Employee has a right to be restored to the same
                or an equivalent position in accordance with Sec. Sec. 825.214 and
                825.215 of this chapter.
                 (b) Restoration limitations. Notwithstanding paragraph (a) of this
                section:
                 (1) An Employee is 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 in order to deny
                restoration to employment.
                 (2) For leave taken under the EFMLEA, an Employer may deny job
                restoration to key Eligible Employees, as defined under the FMLA (Sec.
                825.217 of this chapter), if such denial is necessary to prevent
                substantial and grievous economic injury to the operations of the
                Employer.
                 (3) An Employer who employs fewer than twenty-five Eligible
                Employees may deny job restoration to an Eligible Employee who has
                taken Expanded Family and Medical Leave if all four of the following
                conditions exist:
                 (i) The Eligible Employee took leave to care for his or her Son or
                Daughter whose School or Place of Care was closed, or whose Child Care
                Provider was unavailable, for COVID-19 related reasons;
                 (ii) The position held by the Eligible Employee when the leave
                commenced does not exist due to economic conditions or other changes in
                operating conditions of the Employer that affect employment and are
                caused by a Public Health Emergency during the period of leave;
                 (iii) The Employer makes reasonable efforts to restore the Eligible
                Employee to a position equivalent to the position the Eligible Employee
                held when the leave commenced, with equivalent employment benefits,
                pay, and other terms and conditions of employment; and
                 (iv) Where the reasonable efforts of the Employer to restore the
                Eligible Employee to an equivalent position fail, the Employer makes
                reasonable efforts to contact the Eligible Employee during a one-year
                period, if an equivalent position becomes available. The one-year
                period begins on the earlier of the date the leave related to a Public
                Health Emergency concludes or the date twelve weeks after the Eligible
                Employee's leave began.
                Sec. 826.140 Recordkeeping.
                 (a) An Employer is required to retain all documentation provided
                pursuant to Sec. 826.100 for four years, regardless whether leave was
                granted or denied. If an Employee provided oral statements to support
                his or her request for Paid Sick Leave or Expanded Family and Medical
                Leave, the Employer is required to document and maintain such
                information in its records for four years.
                 (b) An Employer that denies an Employee's request for Paid Sick
                Leave or Expanded Family and Medical Leave pursuant to Sec. 826.40(b)
                shall document the determination by its authorized officer that it is
                eligible for such exemption and retain such documentation for four
                years.
                 (c) In order to claim tax credits from the Internal Revenue Service
                (IRS), an Employer is advised to maintain the following records for
                four years:
                 (1) Documentation to show how the Employer determined the amount of
                paid sick leave and expanded family and medical leave paid to Employees
                that are eligible for the credit, including records of work, Telework
                and Paid Sick Leave and Expanded Family and Medical Leave;
                 (2) Documentation to show how the Employer determined the amount of
                qualified health plan expenses that the Employer allocated to wages;
                 (3) Copies of any completed IRS Forms 7200 that the Employer
                submitted to the IRS;
                 (4) Copies of the completed IRS Forms 941 that the Employer
                submitted to the IRS or, for Employers that use third party payers to
                meet their employment tax obligations, records of information provided
                to the third party payer regarding the Employer's entitlement to the
                credit claimed on IRS Form 941, and
                 (5) Other documents needed to support its request for tax credits
                pursuant to IRS applicable forms, instructions, and information for the
                procedures that must be followed to claim a tax credit. For more
                information, please consult https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.
                Sec. 826.150 Prohibited acts and enforcement under the EPSLA.
                 (a) Prohibited acts. An Employer is prohibited from discharging,
                disciplining, or discriminating against any Employee because such
                Employee took Paid Sick Leave under the EPSLA. Likewise, an Employer is
                prohibited from discharging, disciplining, or discriminating against
                any Employee because such Employee has filed any complaint or
                instituted or caused to be instituted any proceeding, including an
                enforcement proceeding, under or related to the EPSLA, or has testified
                or is about to testify in any such proceeding.
                 (b) Enforcement. (1) Failure to provide Paid Sick Leave. An
                Employer who fails to provide its Employee Paid Sick Leave under the
                EPSLA is considered to have
                [[Page 19357]]
                failed to pay the minimum wage as required by section 6 of the FLSA, 29
                U.S.C. 206, and shall be subject to the enforcement provisions set
                forth in sections 16 and 17 of the FLSA, 29 U.S.C. 216, 217.
                 (2) Discharge, discipline, or discrimination. An Employer who
                discharges, disciplines, or discriminates against an Employee in the
                manner described in subsection (a) is considered to have violated
                section 15(a)(3) of the FLSA, 29 U.S.C. 215(a)(3), and shall be subject
                to the enforcement provisions relevant to such violations set forth in
                sections 16 and 17 of the FLSA, 29 U.S.C. 216, 217.
                Sec. 826.151 Prohibited acts and enforcement under the EFMLEA.
                 (a) Prohibited acts. The prohibitions against interference with the
                exercise of rights, discrimination, and interference with proceedings
                or inquiries described in the FMLA, 29 U.S.C. 2615, apply to Employers
                with respect to Eligible Employees taking, or attempting to take, leave
                under the EFMLEA.
                 (b) Enforcement. An Employer who commits a prohibited act described
                in paragraph (a) of this section shall be subject to the enforcement
                provisions set forth in section 107 of the FMLA, 29 U.S.C. 2617, and
                Sec. 825.400 of this chapter, except that an Eligible Employee may
                file a private action to enforce the EFMLEA only if the Employer is
                otherwise subject to the FMLA in the absence of EFMLEA.
                Sec. 826.152 Filing a complaint with the Federal Government.
                 A complaint alleging any violation of the EPSLA and/or the EFMLEA
                may be filed in person, by mail, or by telephone, with the Wage and
                Hour Division, U.S. Department of Labor, including at any local office
                of the Wage and Hour Division. No particular form of complaint is
                required, except that a complaint must be in writing and should include
                a full statement of the acts and/or omissions, with pertinent dates,
                that are believed to constitute the violation.
                Sec. 826.153 Investigative authority of the Secretary.
                 (a) Investigative authority under the EPSLA. For purposes of the
                EPSLA, the Secretary has the investigative authority and subpoena
                authority set forth in sections 9 and 11 of the FLSA, 29 U.S.C. 209,
                211.
                 (b) Investigative authority under the EFMLEA. For purposes of
                EFMLEA, the Secretary has the investigative authority set forth in
                section 106(a) of the FMLA, 29 U.S.C. 2616(a), and the subpoena
                authority set forth in section 106(d) of the FMLA, 29 U.S.C. 2616(d).
                Sec. 826.160 Effect on other laws, employer practices, and collective
                bargaining agreements.
                 (a) No diminishment of other rights or benefits. (1) An Employee's
                entitlement to, or actual use of, Paid Sick Leave under the EPSLA is in
                addition to--and shall not in any way diminish, reduce, or eliminate--
                any other right or benefit, including regarding Paid Sick Leave, to
                which the Employee is entitled under any of the following:
                 (i) Another Federal, State, or local law, except the FMLA as
                provided in Sec. 826.70;
                 (ii) A collective bargaining agreement; or
                 (iii) An Employer policy that existed prior to April 1, 2020.
                 (2) That an Employee already used any type of leave prior to April
                1, 2020, for reasons related to COVID-19 or otherwise, shall not be
                grounds for his or her Employer to deny him or her Paid Sick Leave and
                Expanded Family and Medical Leave or for the Employer to delay or
                postpone the Employee's use of Paid Sick Leave and Expanded Family and
                Medical Leave. The foregoing is subject to the exception of FMLA leave
                as provided in Sec. 826.70. An Employer shall permit an Employee to
                immediately use the Paid Sick Leave and Expanded Family and Medical
                Leave to which he or she is entitled under the EPSLA and the EFMLEA.
                However, no Employer is obligated or required to provide, and no
                Employee has a right or entitlement to receive, any retroactive
                reimbursement or financial compensation through Paid Sick Leave or
                Expanded Family and Medical Leave for any unpaid or partially paid
                leave taken prior to April 1, 2020, even if such leave was taken for
                COVID-19-reated reasons.
                 (b) Sequencing of Paid Sick Leave. (1) An Employee may first use
                Paid Sick Leave before using any other leave to which he or she is
                entitled by any:
                 (i) Other Federal, State, or local law;
                 (ii) Collective bargaining agreement; or
                 (iii) Employer policy that existed prior to April 1, 2020.
                 (2) No Employer may require, coerce, or unduly influence any
                Employee to first use any other paid leave to which the Employee is
                entitled before the Employee uses Paid Sick Leave. Nor may an Employer
                require, coerce, or unduly influence an Employee to use any source or
                type of unpaid leave prior to taking Paid Sick Leave.
                 (c) Sequencing of Expanded Family and Medical Leave. (1) Consistent
                with section 102(d)(2)(B) of the FMLA, 29 U.S.C. 2612(d)(2)(B), an
                Eligible Employee may elect to use, or an Employer may require that an
                Eligible Employee use, provided or accrued leave available to the
                Eligible Employee for the purpose set forth in Sec. 826.20(b) under
                the Employer's policies, such as vacation or personal leave or paid
                time off, concurrently with Expanded Family and Medical Leave.
                 (2) If an Eligible Employee elects, or an Employer requires,
                concurrent leave, the Employer must pay the Eligible Employee the full
                amount to which the Eligible Employee is entitled under the Employer's
                preexisting paid leave policy for the period of leave taken.
                 (d) No creation of requirements upon end of employment. An Employer
                has no obligation to provide--and an Employee or former Employee has no
                right or entitlement to receive--financial compensation or other
                reimbursement for unused Paid Sick Leave or Expanded Family and Medical
                Leave upon the Employee's termination, resignation, retirement, or any
                other separation from employment.
                 (e) No creation of requirements upon expiration. An Employer has no
                obligation to provide--and an Employee or former Employee has no right
                or entitlement to receive--financial compensation or other
                reimbursement for unused Paid Sick Leave or Expanded Family and Medical
                Leave upon the expiration of the FFCRA on December 31, 2020.
                 (f) One time use. Any person is limited to a total of 80 hours Paid
                Sick Leave. An Employee who has taken all such leave and then changes
                Employers is not entitled to additional Paid Sick Leave from his or her
                new Employer. An Employee who has taken some, but fewer than 80 hours
                of Paid Sick Leave, and then changes Employers is entitled only to the
                remaining portion of such leave from his or her new Employer and only
                if his or her new Employer is covered by the Emergency Paid Sick Leave
                Act. Such an Employee's Paid Sick Leave would expire upon reaching 80
                hours of Paid Sick Leave total, regardless of the Employer providing
                it, or when the Employee reaches the number of hours of Paid Sick Leave
                to which he or she is entitled based on a part-time schedule with the
                new Employer.
                [FR Doc. 2020-07237 Filed 4-2-20; 8:45 am]
                 BILLING CODE 4510-27-P