Temporary Regulations to Implement the Families First Coronavirus Response Act

Updated April 13, 2020

On April 6, 2020, the U.S. Department of Labor (DOL) published temporary regulations implementing the Families First Coronavirus Response Act (FFCRA). The FFCRA’s paid leave requirements are described and interpreted in new Part 826 of Title 29 of the Code of Federal Regulations.

As the Regulations are lengthy, we prepared a short summary below clarifying some of the key provisions not addressed in our FAQs. These are:

• Qualifying reasons for paid sick leave;

• Required number of sick pay hours for Full-time, Part-time and Part-time/Variable scheduled employees;

• The meaning of “Full-time” employment;

• The interplay between an employer’s paid sick leave policy and leave under the FFCRA based on school-closure; and
• Required amount of pay under the FFCRA.  

For more information about the FFCRA, the DOL’s Frequently Asked Questions, and Regulations regarding documentation requirements, small business exemption, and more, please read our blog here.

Paid Sick Leave – Clarification Concerning Qualifying Reasons

Reason 1: The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19

29 CFR 826.20(a)(2) clarifies that the question for eligibility is whether the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order.

The Supplementary Information to the Regulations provides the following examples:

If 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. As such, he may not take paid sick leave because his 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. That said, he may be eligible for state unemployment.

If a law firm permits its lawyers to work from home, a lawyer would not be prevented from working by a stay-at-home order, and thus may not take paid sick leave as a result of being subject to that order. In this circumstance, the lawyer is able to telework even if she is required to use her own computer instead of her employer’s computer. But, she would not be able to telework in the event of a power outage or similar extenuating circumstance and would therefore be eligible for paid sick leave during the period of the power outage or extenuating circumstance due to the quarantine or isolation order.

Reason Two: The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19

29 CFR 826.20(a)(3) clarifies that to be eligible for paid sick leave, the advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.

However, an employee who is self-quarantining may not take paid sick leave if the employer has work for the employee, the employee can telework, and there are no extenuating circumstances, such as serious COVID-19 symptoms, that prevent the employee from performing that work.

Reason Three: The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis

Under 29 CFR 826.20(a)(4), to be eligible for paid sick, the employee must experience the following symptoms: Fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention (CDC).

Paid sick leave taken for this reason must be limited to the time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a COVID-19 test.

For example:  An employee experiencing COVID-19 symptoms may take paid sick leave, for instance, for time spent making, waiting for, or attending an appointment for a COVID-19 test. But, the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.

An employee who can telework while waiting for the results of the test is not entitled to paid sick leave.

An employee who is not eligible for testing may be eligible for paid sick leave under the second reason above (a health care provider’s advice to self-quarantine), provided all the requirements are met.

Reason Four: The employee is caring for an individual who is subject to a quarantine order or has been advised to self-quarantine

Per 29 CFR 826.20(a)(5)-(7), an individual means an employee’s “immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship.”

Employee may be entitled to paid sick leave only if but for a need to care for an individual, the employee would be able to perform work for the employer.

Reason Five: The employee is caring for the employee’s son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of the son or daughter is unavailable, due to COVID-19 precautions

Per 29 CFR 826.20(a)(8), an employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for the employee’s child. Generally, an employee does not need to take such leave if another suitable individual— such as a co-parent, co-guardian, or the usual child care provider—is available to provide the care the employee’s child needs.

Paid Sick Leave Amount for Part-Time Employees with a Variable Schedule

Under the EPSLA, a full-time employee is entitled to 80 hours of paid sick leave, and a part-time employee is entitled to the “number of hours that such employee works, on average, over a 2-week period.”

For part-time employees with a variable schedule, the sick leave calculation is not so straightforward. Per the Regulations (29 CFR 826.21(b)(2)(i)), the amount of paid sick leave for part-time, variable-scheduled employees, should be equal to “fourteen times the average number of hours that the Employee was scheduled to work each calendar day over the six-month period ending on the date on which the Employee takes Paid Sick Leave, including any hours for which the Employee took leave of any type.”

For part-time, variable scheduled employees who work for less than six months, the Regulations (29 CFR 826.21(b)(2)(ii)) provide an even more complicated formula: “fourteen times the number of hours the Employee and the Employer agreed to at the time of hiring that the Employee would work, on average, each calendar day. If there is no such agreement, the Employee is entitled to up to the number of hours of Paid Sick Leave equal to fourteen times the average number of hours per calendar day that the Employee was scheduled to work over the entire period of employment, including hours for which the Employee took leave of any type.”

Full-Time Employment

The DOL originally stated that “full-time employment” means 40 hours or more per week. The Regulations (29 CFR 826.21(a)(3)) expand on this and state that for sick leave purposes “an employee who does not have a normal weekly schedule … is considered to be a full-time employee if the average work hours per workweek … including hours for which the employee took leave of any type, is, at least 40 hours each workweek.” The weekly average should be computed over a six-month period, or duration of employment, the lesser of the two.

Use of An Employer’s Paid Leave Policy Concurrently with School-Closure Leave   

Per the Regulations (29 CFR 826.23(c)), an employee may elect to use, or an employer may require an employee to use, accrued leave under the employer’s policies, concurrently with the school-closure leave under the EFMLEA.

The DOL believes that “this flexibility carries out the purposes of FFCRA by allowing employees to receive full pay during the period for which they have preexisting accrued vacation or personal leave or paid time off and allowing employers to require employees to take such leave and minimize employee absences.”

Note, however, that the permitted tax credit is capped at the amounts set forth in the FFCRA. 

Amount of Pay under the FFCRA

The DOL states the regular rate used to determine the amount of pay should be representative of the employee’s regular rate from week to week. The Regulations (29 CFR 826.25) clarify that an employer must use an average of the employee’s regular rate over multiple workweeks (either a six-month period, or duration of employment, whichever is the lesser). Such an average should be weighted by the number of hours worked each workweek. The Supplementary Information to the Regulations provide the following example:

Consider an employee who receives $400 of compensation in one week for working 40 hours and $200 of compensation in the next week for working ten hours. The regular rate in the first week is $10 per hour ($400 divided by 40 hours), and the regular rate for the second week is $20 per hour ($200 divided by 10 hours). The weighted average, however, is not computed by averaging $10 per hour and $20 per hour (which would be $15 per hour). Rather, it is computed by adding up all compensation over the relevant period (here, two workweeks), which is $600, and then dividing that sum by all hours worked over the same period, which is 50 hours. Thus, the weighted average regular rate over this two-week period is $12 per hour ($600 divided by 50 hours).

Sue M. Bendavid, Nicholas Kanter and Tal Burnovski Yeyni are employment defense attorneys.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.