Paid Leave Under the Families First Coronavirus Response Act
| Published date | 06 April 2020 |
| Citation | 85 FR 19326 |
| Record Number | 2020-07237 |
| Section | Rules and Regulations |
| Court | Wage And Hour Division |
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 IVDepartment of Labor-----------------------------------------------------------------------Wage and Hour Division-----------------------------------------------------------------------29 CFR Part 826Paid 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.
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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\
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\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).
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\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.
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\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.
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\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.
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\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
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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
