Under recent legislation, employers are now federally required to provide paid leave, beginning April 1, 2020, for certain employees unable to work due to the COVID-19 pandemic.
The Department of Labor (DOL) recently issued temporary regulations, scheduled for publication April 6, 2020, covering paid leave under the Families First Coronavirus Response Act (FFCRA). In this article, we are not going into the six statutory conditions for paid sick leave or the conditions for paid family leave to care for a son or daughter,[1] but we focus just on the employee claim procedures, important to both employer and employee alike for claiming paid leave. These are principally found under recently issued Temp. Reg. § 826.100.
Minimum Mandatory Coverage. In outlining the claim provisions below, an employer may provide, in employer’s discretion, more liberal provisions. However, to the extent that the coverage of persons is beyond the provisions outlined herein, it may not qualify for related credits.
Claim Procedures
Summary – Self-Certification. Under either the Expanded Family and Medical Leave Act or the Emergency Paid Sick Leave Act, the DOL provided that the employee claim procedure should begin simply with an employee self-certification that may be done orally or in writing, which is described below.
| Recommendation. While not required, we suggest for recordkeeping requirements, that employers undertake to complete a standard form for each employee. In addition, once a claim is submitted, while the employer my rely on the form to accept or reject paid leave, if the employer wants the related tax credit (and who doesn’t), the employer may require that the employee provide further information, but only as necessary to support the credit, as a condition to granting a credit. |
How Employee Requests. An employee must provide his or her employer a request for leave. In order to be complete, that request must contain two parts: (i) an adequate claim; and (ii) basic information.
The Claim. The employee must present a claim for leave. The claim must contain the following four items:
- Employee’s name;
- Date(s) for which leave is requested
- Qualifying reason for the leave;
- statement, essentially saying “Employee is unable to work because of the qualifying reason provided for leave.”
While the Regulations allow oral statements, an employer must still retain records that must be kept for at least four (4) years. Temp. Reg. § 826.140.
| Recommendation. In addition to adopting a written form, having the employee complete and sign the form may be the best defense to avoid employee claims that a rejection was improper. Records should also include documentation of efforts to have the employee complete the form, and correct the form if it is incomplete or incorrect. |
Basic Information. The claim must also provide certain basic information. Basic information is not a separate document, but again self-certification referencing the source for independent information. It must comply with the minimum requirements under Regulations. Temp. Reg. § 826.100 outlines the foregoing additional basic information that should be provided:
- Quarantine/Isolation Order. Whether it is self-quarantine/isolation or for another, an employee must at least identify the following minimum information:
- The name of the federal, state or local governmental entity or agency that issued the order; or
- The name of the health care provider who advised the employee or individual cared for to self-isolate, due to concerns related to COVID-19.
| As regulations state that the quarantine or isolation order must prevent the employee from being able to work or telework (Temp. Reg. § 826.20), while not necessarily required, the employer may have grounds to make a reasonable inquiry that the condition was such that working remotely was not an option or in the interests of an employee. |
- Care of a Son or Daughter. If the care claimed under either the EFMLA or EPSLA is for a son or daughter under age-18, three items of information must be provided:
- The name of the son or daughter;
- The name of the school, place of care or child care provider that has closed or become unavailable; and
- A similar statement to the effect: “Employee represents that no other suitable person will be caring for Son and Daughter during the applicable period for which the benefits are being claimed under ___________________” (designate the benefit claimed).
Giving a Sufficient Reason
The DOL requires a sufficient reason be given and that there be a qualified event. These are narrower than one might assume.
Quarantine or Isolation Order Alone Usually is Not Sufficient. Because employers can allow an employee to maintain flexible, broken hours, if the employee can complete all work during the day from home, the fact that the employee chooses not to work from home will not qualify for paid leave.[2] If the employee’s reduction in hours is simply because there is not enough work, or the business reduced staff or closed, due to an order is not enough grounds.[3] The employee is entitled to unemployment and not to paid leave. Temp. Reg. § 826.20(a)(2) and (b).
Stay-at-Home Orders Fare No Better. The DOL has taken a fairly narrow view of eligibility for paid leave where there is a quarantine, isolation or stay-at-home order.
The DOL’s view as identified in the preamble, at footnote 3, is that a business closure or reduced workforce is not enough. The employee must be prevented from working where the employer would otherwise be employing that person that very day. Closure or lack of work is insufficient. For example, if the employee was needed for work and was prevented from telecommuting by an event, paid sick leave is available. The preamble illustrates an employee working from home, but due to another circumstance, such as a power outage, the employee personally could not work; in that event, the employee may then qualify for paid sick leave.[4]
Caring for an Individual – Merely Anyone is Insufficient. Under Temp. Reg. § 826.20, caring for an individual is limited to an employee’s immediate family, a person whom regularly resides in employees’ home or a similar person with whom the employee has a relationship that creates an expectation of care – there must be a personal relationship. While this provision is fairly broad that care for a “life partner” or “close friend” would qualify, care for a neighbor would not be sufficient. Accordingly, the reason should include a relationship if it is for the care of another person.
Son or Daughter. In addition to being unable to work, the term son or daughter, in making a claim is important to know. It includes any child, whether adopted, foster, step, legal ward, or child of a person standing in “loco parentis” who is under 18 years of age or older who is incapable of self-care because of a mental or physical disability. Because of the reference to “loco parentis” an adult without legal duty, such as having a neighbor or simply life partner care for a child may not qualify.
Also, the stated reason in the claim must be clear that the employee has no other suitable person available to care for the son or daughter during the leave. It is not sufficient that the school or child care center is closed. Temp. Reg. § 826.20(a)(6).
On the other hand, the regulations recognize that the care for a son or daughter without school or child care is the only situation will allow an employee to break-up the periods of paid sick leave and family leave within one or more claims in intervals, if agreeable with the employer.
Employer Requests. The employer may request further documentation, but only to the extent necessary to support tax credits claimed under the FFCRA. Leave need not be granted if the materials provided are insufficient.
Recommendations
Compliance with the new
Act can be tricky wherein we recommend that employers confer with counsel
familiar with these new laws. Failure to
get this correct may result in serious actions by the DOL against employers. In addition, for employers who are seeking
tax credits, it is important that the benefits program meet all requisites
needed to maximize the available credit. In addition, employers who are seeking the Paycheck Protection Program
Loans need to integrate their planning for the Act, to maximize
[1] For discussion on this topic, see A Guide for California Employers.
[2] The preamble provides an example, as to an employee who can reserve work times at home where there are fewer distractions.
[3] The preamble identifies by example whether closure was brought on by the employer or by reason of a stay-at-home order, that three would be no paid leave:
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.
[4] In providing an example of a law firm working remotely it was identified;
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.
