This article is the marvelous work of our current law clerk Kieran O’Day, who will be finishing his stint with us shortly and heading on to clerk with the Supreme Court for the State of Wisconsin!
To help navigate the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) published guidance on April 6, 2020. In our last post, we discussed the ins and outs of the leave provisions of the FFCRA. In this post, we will highlight that guidance. For information regarding the FFCRA, the Paycheck Protection Program under the CARES Act, or Wisconsin’s Safer At Home Order, see our prior posts on the Business Law Blog.
The DOL determined that certain definitions needed further explanation and guidance to fully effectuate the FFCRA. Some definitions, like those for “son or daughter” or “person,” come from other laws like the Family and Medical Leave Act (FMLA) or the Fair Labor Standards Act (FLSA). The DOL further explained the law’s definition of “telework.” The DOL explains that telework is defined broadly under the FFCRA in order to “effectuate the statute’s underlying purposes . . . [and to] encourage employers and employees to implement highly flexible telework arrangements that allow employees to perform work, potentially at unconventional times[.]” The explanation of telework also clarifies that, because of these potentially unconventional work times, employers are still required to compensate employees for recorded hours, including overtime.
Paid Leave Entitlements
The DOL further explains each of the six reasons that an employee may take leave under the Emergency Paid Sick Leave Act (EPSLA). Those explanations are highlighted below:
- Reason 1: Employee is unable to work or telework because the employee is subject to a federal, state, or local quarantine or isolation order.
- This applies to broad stay at home orders that affect some or all people (like the one Governor Evers issued in March).
- The question is “whether the employee would be able to work ‘but for’ being required to comply with a quarantine or isolation order.”
- Employees cannot use this leave if they do not have work from the employer. This is because regardless of the pandemic, the employee in this instance would not be working anyway.
- Telework is available under three circumstances: (1) the employer has work for the employee; (2) the employer permits the employee to perform the work from where the employee is quarantined or isolated; and (3) there are no extenuating circumstances that prevent the employee from performing the work.
- Reason 2: Employee is unable to work or telework because the employee has been advised by a healthcare provider to self-quarantine for a COVID-19 related reason.
- The healthcare provider must believe that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to contracting COVID-19.
- The employee is able to telework based on the same three criteria above. Some extenuating circumstances could include serious symptoms that prevent the employee from working.
- Reason 3: Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Symptoms include, but are not necessarily limited to, the typical COVID-19 symptoms like fever, dry cough, and shortness of breath.
- Employee may take paid leave for time spent seeking such a diagnosis “for instance . . . making, waiting for, or attending an appointment for a test for COVID-19.”
- Employees may not take paid leave for self-quarantine without seeking a diagnosis.
- Employee may continue to take leave as long as experiencing symptoms, or after testing positive if instructed to self-quarantine.
- Telework is based on the same criteria as (1) above.
- Reason 4: Employee is caring for someone subject who is (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 COVID-19 concerns.
- Employee must have “a genuine need to care for the individual.” The individual cannot be someone with whom the employee has no personal relationship. The individual “must be an immediate family member, roommate, or similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person . . . .”
- Reason 5: Employee needs to take care of employee’s son or daughter if (a) the child’s school or place of care has been closed or (b) the child care provider is unavailable due to COVID-19.
- This only applies if the employee genuinely cannot work because they are the only person available to care for the employee’s son or daughter. If another co-parent, co-guardian, or the usual care giver is available and the employee can work, the employee may not take leave under this section.
Reason 6, a substantially similar condition specified by the Secretary of Health and Human Services, did not receive further guidance.
The common thread throughout the 5 reasons for taking emergency paid sick leave is that the employer must actually have work for the employee to do before the employee can take leave. The guidance provides a helpful example:
“[I]f 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. . . . [H]is 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.”
Paid Leave Rate of Pay & Hours of Leave
The DOL further explains the rate of pay requirements under the FFCRA. Remember, if an employee is taking leave for reasons (1)-(3), the employee is entitled to that employee’s regular rate of pay. If an employee takes leave for reasons (4)-(6), the employee is entitled to not less than 2/3 of the employee’s regular rate of pay. However, as the DOL explains, if the employee’s regular rate of pay is less than the federal, state, or local minimum wage, the employee is entitled to the highest applicable minimum wage for the duration of the employee’s leave. In Wisconsin, there is no difference between the state and federal minimum wage requirements, so employees whose regular rate of pay is lower than $7.25 an hour are entitled to $7.25 an hour for the duration of their leave.
Employees are entitled to hours of leave equal to the average hours the employee works over a two-week period. The DOL explains that if an employee does not have a regular schedule (for example 9:00 a.m. to 5:00 p.m. Monday through Friday), the employee’s average number of hours worked should be calculated over a six-month period. If the employee has not been employed by that employer for at least six months, the rate is calculated based on the entire time of the employee’s employment.
Employers with fewer than 50 employees
The FFCRA provides that employers that employ fewer than 50 employees may be exempt from providing leave in certain circumstances. The Department clarified that those employers with fewer than 50 employees are exempt when:
- 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;
- 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 businesses, or responsibilities; or
- 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 of the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.
Employers that deny leave based on these criteria are advised by the DOL to retain records that document the reasons for denial. However, those records should merely be retained by the employer and should not be sent to the DOL.
Interaction between EPSLA & EFMLA
Reason for paid leave (5) under the EPSLA and the only eligible reason under the EFMLA overlap; thus those provisions interact and can be used successively. The DOL explains that if an employee is taking paid leave to care for a son or daughter whose school has closed may first take the 10-day leave under the EPSLA first and then take the remaining 10 paid weeks under the EFMLA. This makes sense because taking leave under the EFMLA entitles an employee to 12 total weeks, but only 10 paid. Because the reasons for taking leave overlap, an employee can justifiably get all 12 weeks paid if that employee is eligible for both types of leave.
Temporary Non-Enforcement Period
This portion of this post deviates from the guidance that the DOL issued on April 6, 2020, but it is still important information for employers. On March 24, 2020—roughly a week before the FFCRA leave provisions took effect—the DOL issued a “Field Assistance Bulletin” that updated employees in the Wage & Hour Division on the DOL’s temporary non-enforcement policy.
The bulletin explains that the DOL “will observe a temporary period of non-enforcement of the FFCRA for the period of March 18 through April 17, 2020.” In order to get the benefits of the non-enforcement policy, an employer must make “reasonable, good faith effort to comply with the [FFCRA].” The bulletin goes on to explain what reasonably and in good faith mean in this context. Those terms apply only when all of the following are present:
- The employer remedies any violations;
- The violations were not “willful,” which means that the employer knew or should have known that the conduct was prohibited; and
- The employer certifies in a writing sent to the DOL that the employer will comply with the FFCRA in the future.
If an employer is in violation of the FFCRA and does not meet all of the above requirements, the DOL may take action against the employer. It is important to note that this temporary non-enforcement period only applies to DOL enforcement. Aggrieved employees still have a private right of action against the employer under the FFCRA.
This guidance from the DOL is likely only the beginning of what we can expect from the federal agencies involved in these acts. Follow our COVID-19 blog posts on www.wisconsinbusinesslawblog.com/ as we will continue to update as more guidance comes down from the federal and state governments. Please contact our offices at 262-785-1800 or visit our website www.schoberlaw.com to talk to the business law attorneys regarding the new leave requirements or any of the new laws centered around COVID-19.