DOL Issues Temporary Regulations for the FFCRA

The U.S. Department of Labor (“DOL”) issued temporary regulations for the Families First Coronavirus Response Act (“FFCRA”) on April 1, 2020. The regulations answer a number of questions regarding the interpretation of the FFCRA.

In particular, the regulations interpret “quarantine or isolation orders” to 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.”  This clarifies that an employee may take paid sick leave only if being subject to such an order is the factor that prevents the employee from working or teleworking.  Please note that an employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee (for example, because the employer is temporarily or indefinitely closed for business).  This is because the employee would be unable to work even if he or she were required to comply with the quarantine or isolation order.  The inclusion of shelter in place and stay at home orders within the definition of “quarantine or isolation orders” was not anticipated based on the regular use of those terms by, among others, the Centers for Disease Control.  Nevertheless, the DOL regulations should be followed by employers.

The regulations additionally provide clarifications and interpretations of the FFCRA, including:

• The definition of “son or daughter” under both the paid sick leave and expanded FMLA leave includes adult childrenwho are incapable of self-care due to a mental or physical disability. (This represents a change of the language of the FFCRA to effectuate consistency between the provisions.)
• Employers are not required to compensate for unreported hoursworked while teleworking unless they knew or should have known the hours were worked.
• FFCRA sick leave may be taken if the employee is advised by a health care provider to self-quarantine because the employee has, may have, or is “particularly vulnerable” to COVID-19.
• If the employee is taking FFCRA sick leave because the employee is experiencing symptoms (e.g., fever, dry cough, shortness of breath) and awaiting a diagnosis, the leave may be taken only for the time spent making, waiting for, and attending the appointment for diagnosis. If the employee is unable to telework, the time may also be taken while awaiting results, regardless of the severity of the COVID-19 symptoms that he or she might be experiencing.
• The unpaid portion of the expanded FMLA leave applies to two weeks, not 10 days.
• Employees are only qualified to take FFCRA leave to care for a child whose school or place of care has closed, or whose childcare provider is unavailable, if there is no other suitable person available to care for the child.
• Employees must provide their employer documentation in support of the need for FFCRA leave, including a signed statement with 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 (this can also be oral) representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. The employee must provide additional documentation depending on the qualifying reason for leave:
  • If based on an quarantine or isolation order, the employee must provide the name of the government entity that issued the order.
  • If based on a health care provider’s advice for the employee or a family member to self-quarantine, the employee must provide the name of the health care provider.
  • If based on caring for a son or daughter without school or childcare, the employee must provide:
    • The name of the son or daughter being cared for.
    • The name of the school, place of care, or child care provider that has closed or become unavailable due to COVID-19 reasons.
    • A statement representing that no other suitable person is available to care for their son or daughter during the period of requested leave.

Lastly, the DOL will be posting on its website a pre-recorded webinar on Friday, April 3, 2020, to provide further details concerning the FFCRA, including informing employers how to comply their FFCRA obligations for those subject to it.