COVID-19: DOL Issues FFCRA Regulations

United States Department of Labor posts temporary rule issuing FFCRA regulations

By: Kyle McClain

April 1, 2020

Earlier this afternoon, the United States Department of Labor (“DOL”) issued regulations regarding the Families First Coronavirus Response Act (“FFCRA”). The regulations were issued as part of a temporary rule and, like all federal agency regulations, have the effect of federal law. Information about the temporary rule can be found on the DOL’s webpage dedicated to it (here) and the temporary rule (including the regulations) can be downloaded directly here.

In addition to discussing the rule and regulations, the DOL’s news release regarding the regulations trumpets the various guidance it has posted to date as “plain-language compliance assistance materials to explain FFCRA’s benefits and requirements” which suggests that those materials can continue to be relied upon, albeit subordinate to the regulations and any conflicting information therein (and of course, all subordinate to the FFCRA itself). Please refer to my previous posts discussing the DOL’s first, second, and third releases of FFCRA guidance for more information about those releases, as well as my post about the DOL’s new employee notice posters. The DOL news release also states that a recorded webinar will be posted on the DOL’s COVID-19 webpage (here) on Friday, April 3,  2020, “to provide interested parties a more in-depth description and help them learn more about the FFCRA.”

The temporary rule is 124 pages long and includes an executive summary, background information about the Emergency Paid Sick Leave (“EPSLA”) and Emergency Family and Medical Leave Expansion Act (“EFMLEA”), discussion regarding various parts of the regulations, information about the regulatory process, and finally, the regulations themselves. The regulations are 42-pages long, beginning on page 83 of the DOL’s PDF document and continue through page 124.

It will take time to completely consider how the regulations compare and align or conflict with the DOL’s guidance to date, but simply reviewing the definitions section alone (Section 826.10 of the regulations, pages 84 through 89 of the PDF) reveals important new information important to employers in implementing the FFCRA. For example, for the first time, the term “Subject to a quarantine or isolation order”–one of the qualifying reasons for the use of paid sick leave under the EPSLA–is explicitly defined. The definition reads:

“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.”

The term “telework” is also defined, and appears to illustrate the need to consider the regulations together with the guidance-released to date (and potentially still to come). The “telework” definition includes information regarding when an Employee is considered “able” to telework. The regulations provide:

“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: (a) his or her Employer has work for the Employee; (b) the Employer permits the Employee to work from the Employee’s location; and (c) 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 § 790.6 shall not apply to Employees while they are teleworking for COVID-19 related reasons.”

Whether an employee is “able” to telework or, more importantly, unable to telework is important because the FFCRA provides that employees are only eligible for leave under both the EPSLA and the EFMLEA if they are “unable to work (or telework)” due to a qualifying reason. Therefore, for many employees whose physical work locations are closed, whether they are able to “telework” will be the first step in evaluating eligibility for leave under the FFCRA. In turn, whether there are “extenuating circumstances” preventing the employee from performing that work will be a key consideration. However, what qualifies as an “extenuating circumstance,” other than “serious COVID-19 symptoms” is not defined by the regulations (although the discussion released as part of the temporary rule indicates that a power outage would qualify as an extenuating circumstance as well–see page 15 of the PDF).

This is where the DOL’s guidance might come in. The DOL’s Question and Answer document addresses the ability (and inability) to telework. For example, Q&A 19 says that “if you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.” (Presumably this guidance would apply equally to paid sick leave under the EPSLA, although oddly it only explicitly mentions expanded family and medical leave under the EFMLEA.)Therefore, it appears that having a child whose school or place of care is closed, in addition to itself being a qualifying reason for leave under both the EPSLA and the EFMLEA, would also have to be considered an “extenuating circumstance” preventing an employee from teleworking in order for the employee to be eligible for the applicable type of leave.

In sum, it will take time to completely review and digest the DOL’s new FFCRA regulations, but they should be the starting point for employer’s when considering requests for leave under the FFCRA (whether under the EPSLA or the EFMLEA), making eligibility determinations, and granting or denying such requests. If the regulations do not appear to resolve a question, existing DOL guidance appears to continue to represent official DOL positions on FFCRA compliance issues and questions. Of course, please do not hesitate to contact your employment lawyer with concerns!

The information contained in this post is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice. Any specific questions about this information should be directed to Attorney Kyle McClain.