On April 1, the Department of Labor (DOL) issued their regulations to implement the Families First Coronavirus Response Act (FFCRA). These regulations will expire with the employment-related provisions of the FFCRA on December 31, 2020.

To recap, Congress passed and the President signed the FFCRA which provided for Paid Sick Leave and Expanded Family Medical Leave for various COVID-19 related events. This law was amended by the CARES Act. The DOL issued guidance and the requisite poster. Now, it has issued its formal regulations.

At some point on Friday, April 3, the DOL will post a recorded webinar to provide a more in-depth discussion of the FFCRA and the new regulations.

Each employer’s circumstances vary making it impractical to address all of the regulations in a newsletter. We will simply highlight a few of the more universal insights that have not yet been discussed:

• The regulations expand the definition of “Child Care Provider” to explain that the child care provider need not be compensated if they are a family member or friend who regularly cares for the employee’s child.
• An employee may not take Paid Sick Leave or Expanded Family Medical Leave to care for a child who is out of school (or their regular childcare is unavailable) if there is another suitable individual (co-parent, co-guardian, or other) available to care for the child.
• Being “Subject to a Quarantine or Isolation Order” is defined in one regulation and explained in latter regulations (recall that any analysis under this prong must necessarily involve a review of the specific order or orders by the governmental authority; do not rely upon a general understanding or the press reports).
• An employee subject to one of the above orders may not take Paid Sick Leave if the employer does not have work for the employee. This may include if the closure of a business is substantially caused by a stay-at-home order.
• As suggested from the previous language but clarified in these temporary regulations, an employee experiencing COVID-19 symptoms may not take Paid Sick Leave to self-quarantine without seeking a medical diagnosis.
• The regulations define the breadth of persons for whom an employee may seek Paid Sick Leave under the “caring for an individual” prong and more fully explain when Paid Sick Leave will and will not apply to this situation. Generally speaking, the employee must have a personal relationship with the individual for whom they are caring, such as an immediate family member or roommate.
• In determining whether a person has been employed for 30 days for eligibility for the Expanded Family Medical Leave Act, the regulations describe a bridging scheme for persons who may have been laid off or terminated after March 1, 2020, but rehired before December 31, 2020.
• The regulations confirm that an employer may not require advance notice of the need for leave and discuss what type of notice an employer may require.
• The regulations are specific as to the documentation an employee may be required to provide, including that information which may be required for the tax credits (as was discussed in yesterday’s Employer’s Legal Resource e-newsletter).
• The regulations state that each person is limited to a total of 80 hours of Paid Sick Leave from April 1, 2020, through December 31, 2020 – even if that person works for multiple employers.
• The regulations clarify the employee is not entitled to any payout of available but unused Paid Sick Leave or Expanded Family Medical Leave upon the employee’s termination, resignation, or separation from employment for any reason.

These were just a few of the nuggets we found interesting.

By Kristen L. Brightmire and Rebecca D. Bullard
KBrightmire@dsda.com and RBullard@dsda.com