Effective as of April 1, 2020, the Department of Labor (“DOL”) today promulgated a temporary Rule for implementing the emergency paid sick leave (“EPSL”) and emergency family medical leave act (“EFMLA”) provisions of the Families First Coronavirus Relief Act.  The Rule will be finalized on April 6, 2020.  Additionally, the DOL has announced that it will post a prerecorded webinar to its COVID-19 website tomorrow to provide further details.

The Rule clarifies certain points and provides guidance to employers on how to provide EPSL and EFMLA. The Rule also changes previous instructions and guidelines including applicability to ‘stay at home orders’.  Important changes and clarifications from the Rule include:

• Small Employer Exemption – Employers with fewer than 50 employees may deny EPSL and/or EFMLA 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 business, 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 the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

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 above 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.

The DOL’s goal in implementing a small employer exemption was to balance the objective of making EPSL and EFMLA widely and readily available to employees in need with the burden that would be placed on an employer by providing such leave.  It does not benefit an employee to force the employee’s employer to close for the sake of providing temporary relief.

The small employer exemption is to be narrowly construed on a case by case basis.  Employers may not summarily deny EPSL and/or EFMLA to the employer as a whole.  An employer must also consider assistance available by other sources.

• Healthcare Provider Exemption – Employers may elect to exempt employees who are health care providers or emergency providers. This is an election to exempt classes of employees, not the employer as a whole.  An employer may not elect to exempt non-healthcare provider employees, however, employers my judiciously and broadly apply the term health care provider to employees that are necessary to keep health care facilities well supplied and operational.
• Application to ‘Stay at Home Order’ – “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.”

It appears that this clarification includes the State of California’s current stay at home order.  However, if your business is closed or no work is available, the employee is not entitled to EPSL. If the business is open and an employee stays home because the employee is over 65 or immunity challenged the employee is entitled to EPSL.

• Documentation for Need of Leave – An employee must provide his or her employer documentation in support of EPSL or EFMLA. 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. The qualifying reason for leave requires additional documentation unique to each qualifying reason.
• Telework – The Rule defines ‘telework’ and clarifies that any employee that is able to telework, even under any type of quarantine order, is not eligible for EPSL. Work must be available for an employee to be eligible for EPSL.
• Seeking Diagnosis – An employee may receive EPSL to seek a medical diagnosis for COVID-19 symptoms ONLY while the employee is taking affirmative steps to obtain a medical diagnosis. An employee must have a medical diagnosis to self-quarantine. An employee waiting for test results is able to telework and may not receive EPSL unless the employee has severe symptoms or other extenuating circumstances.
• Child Care – If needing time off to care for a child whose school or place of care has closed, a parent employee can only receive EPSL and then EFMLA if work is available and the employee is not able to work because of the school or place of care closure. An employee does not need to take such leave if another suitable individual such as a co-parent, co-guardian, or the usual childcare provider is available to provide the care the employee’s child needs.
• Stacking FMLA’s 12 Weeks – EMLA does not stack with FMLA. FMLA already used during the relevant measuring period may not be used for EFMLA.