FAQs on Emergency Paid Sick Leave and Emergency FMLA

On September 16, new rules released by the Department of Labor (DOL) made changes to the original rules created in the Families First Coronavirus Relief Act (FFCRA). These new rules had an impact on aging service providers as the new rules changed to include some staff that previously had been exempt from requiring emergency paid sick leave (EPSL) and emergency FMLA (EFMLA).

Prior to the rule change, all staff in aging services were exempt. Now, only staff who “is capable of providing health care services, meaning that the person is employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary for the provision of patient care, and, if not provided, would adversely impact patient care” can be exempt from EPSL and EFMLA. That means IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants and billers and others not fitting into the definition must receive EPSL and EFMLA.

The rule change has generated a considerable amount of questions to LAI staff. Below you will find questions and answers answered by LAI over the week.

If you have any additional questions on EPSL or EFMLA, please contact Matt Blake at LAI.

General Questions

Q: What communication is required to employees regarding the benefits in FFRCA?  Does the original poster meet the requirements?

A: The regulation states that there is notice requirements for the benefits under FFRCA, but it is not clear on whether the new rule changes must be provided to employees. The original poster has not changed, so that is still sufficient for outlining the protections to employees. Employers must post the notice in a conspicuous place and send the notice to anyone that is teleworking. However, it is unclear whether the employer must proactively tell employees who were not entitled to the benefit whether they now receive it. LAI recommends that if you explicitly told staff they were unable to receive FFRCA benefits, then you likely have an obligation to inform employees of the rule changes and benefits. If you were silent on the issue prior, posting the poster/sending the notice to teleworking staff and waiting for staff to request time off is sufficient.

Q: How does the tax credit work when you are not paying taxes?  When is this filed?  How is it filed?

A: LAI members are eligible employers under the IRS guidance and can receive a tax credit reimbursement. These credits stem from pay roll-based taxes such as FICA, not income or property taxes. Eligible employers will claim the credits on their federal employment tax returns (e.g., Form 941, Employer’s Quarterly Federal Tax Return), but they can benefit more quickly from the credits by reducing their federal employment tax deposits.  If there are insufficient federal employment taxes to cover the amount of the credits, an Eligible Employer may request an advance payment of the credits from the IRS by submitting a Form 7200, Advance Payment of Employer Credits Due to COVID-19. LAI recommends reaching out to your accountant/CPA who prepares your organizations taxes to discuss this process in greater detail.

• Helpful Links:
  • https://www.irs.gov/newsroom/covid-19-related-tax-credits-how-to-claim-the-credits-faqs
  • https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-paid-sick-and-paid-family-leave-overview
  • https://www.irs.gov/newsroom/covid-19-related-tax-credits-general-information-faqs
  • https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs

Q: Is there a waiting period for EFMLA or EPSL?

A: The new DOL rules had a change regarding notice and documentation for taking EFMLA or EPSL. Previously, documentation was needed before an employee could take leave under FFCRA. Now, employees are only required to provide documentation “as soon as practicable.” “Soon as practicable” means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. This documentation must include the reason for the leave, the duration for the leave, and the authority underlying a quarantine or isolation order. Therefore, if there is a qualifying event that allows an employee to take EFMLA or EPSL, they can start leave before providing complete documentation.

Emergency FMLA

Q: Intermittent Leave, how are the days determined?   Usually scheduled or consecutive? 

A: Intermittent leave is only permissible for EFMLA. Intermittent leave is permissible for situations where this is not consistent closure of schools or childcare. For example, if a school is closed Tuesday and Thursday for COVID-19 closures, those could the allowable days for EFMLA. Ultimately, the schedule depends on how you and the employee determine to use it. It can be scheduled at different time frames or consecutive. The DOL FAQ states that it encourages employees and employers to work together to develop a plan that works for both of you regarding intermittent leave. However, there is still a requirement that the employee must get employer approval for intermittent FFCRA leave. If there are multiple times when a school opens or closes, each closure is a separate EFMLA request. See #20 and #22 in the DOL FAQ: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Q: What are the employer responsibilities regarding EFMLA?  Is it like FMLA when an employer knows someone is off work, they send them FMLA paperwork?  In this case are employers required to pay if they know the employee is off even if the employee did not apply?

A: The rights and obligations of FMLA are still in effect. Therefore, it would be advised to adhere to at least the notice requirements for sending FMLA paperwork to an employee. There is nothing that could be found with EFMLA regarding the proactive notice requirement. However, to make sure FMLA/EFMLA run concurrently with each other, sending both notices is likely a good strategy.

EFMLA does require that the employee MUST provide the employer either orally or in writing information as soon as practicable in order to receive the benefit. With regular FMLA there is the obligation by the employer to pay if the employer has enough information to determine that leave is being takin for a FMLA-qualifying reason, but that provision does not seem to be reflected in the EFMLA. There must be some proactive step by the employee to request it. Further, there is a specific set of information the employee must provide in order to obtain it. The soon as practicable standard means that the employee does not need all the paperwork up front, but as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. See # 15 and #16 in the DOL FAQ for specific information that must be provided by the employee to the employer for receiving EFMLA: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#16

Q: Does the employer only pay both the two weeks and the EFMLA if the employee completes the paperwork?

A: The first two weeks are dependent on what the individual is using as the qualifying reason to pay for it. The first two weeks of EFMLA is not covered by the employer. Use of vacation time or PTO would be whatever policy the employer selects and there an option for unpaid. For emergency paid sick leave, they would need to meet the notice requirements and underlying eligibility requirements: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave.

There must be a completion of paperwork and provided documentation by the employee in order to receive EFMLA. That documentation must be provided as soon as practicable. An employer is allowed to deny leave if “materials sufficient to support the applicable tax credit have not been provided.” (See #15 of https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#15).

Q: Is there examples of the paperwork with the required information and signatures to support reason off?

A: #16 of the FAQs gives employers a rundown of needed documentation from staff in order to receive EFMLA and EPSL: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#16.

LAI recommends speaking to your general counsel to assist with the creation of forms for EFMLA for employees to fill out. However, there are some templates found online: 

• https://www.shrm.org/resourcesandtools/tools-and-samples/hr-forms/pages/request-for-expanded-fmla-leave.aspx
• https://www.mcclone.com/hubfs/Emergency%20FMLA%20Notice%20of%20Leave%20Eligibility%20&%20Designation%20Letter.pdf

Q: If EFMLA is required due to a day care being closed, how do we get information about the daycare being closed? Or the school? 

A: While the employer needs documentation for tax credit purposes regarding proof to the IRS that employees were using EFMLA, it is the employee’s duty to get the employer information regarding closures for EFMLA. It is not the employer’s obligation track down the document. A letter or announcement from an official government entity (such as a school district) regarding the closure would be enough. Day cares can be a little more difficult to receive an official document, but an order from DHS or from the day care provider that they are following guidance for closure should be sufficient. If the employee is not willing or able to provide the necessary documentation, an employer is able to deny EFMLA. See #15 of https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#15

Emergency Paid Sick Leave

Q: Under the six qualifying reasons for EPSL , please define number one: “employee is subject to Federal, State, or local quarantine or isolation order related to COVID-19?  Does that mean federal or state stay at home orders? Or does it include an employee who is symptomatic of COVID-19 or test positive with weekly antigen testing and must stay home and quarantine?

A: Number one of the six qualifying reasons for EPSL will apply to both the stay-at-home/isolation orders and quarantine/isolation requirements from CMS/IDPH.

The first part of the question related to stay at home or isolation orders are explicitly cited in DOL FAQs: For purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes quarantine or isolation orders, as well as shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority that cause you to be unable to work (or to telework) even though your employer has work that you could perform but for the order. Therefore, if there is a specific order that keeps a certain group of individuals home and they cannot work or telework, they would qualify for EPSL.

The second portion of the question is not specifically cited in DOL FAQs but can be implied by the intent of law. There can be some debate as to whether a CMS/CDC/IDPH order and guidance is technically an order from a Federal, State, or local entity, but the purpose of FFCRA benefits is to keep individuals at home and keep them from spreading the virus. Therefore, guidance and requirements from CMS, CDC, IDPH, or other governmental regulatory entities that requires staff to quarantine after a specific event, such as testing positive during antigen testing, and are not exempt must be granted EPSL if requested by the employee.

Q: The employee is caring for an individual who is subject to either number one, two, or three on the qualifying reasons.  Example:  Child was sent home due to symptoms or contact tracing to quarantine?  Does EPSL apply to them?

A: One, two, three, and six are qualifying reasons for leave the individual with EPSL. These benefits cannot be transferred. Four and five are qualifying benefits for caring for others. The primary difference between caring for someone under four and five and one, two, and three would the difference in the level of reimbursements. See https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave for reimbursement levels.

Q: What does “caring for a someone” mean? Does it need to be a family member?  Who signs that the person needs care provided?

A: An employee may only take paid sick leave to care for an individual who genuinely needs their care. Such an individual includes an immediate family member or someone who regularly resides in their home. An employee may also take paid sick leave to care for someone if their relationship creates an expectation that you would care for the person in a quarantine or self-quarantine situation, and that individual depends on them for care during the quarantine or self-quarantine. EPSL under FFCRA cannot be taken for someone that an employee has no relationship. See #63 of the FAQs: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#63.

The employee who is caring for another person would need to produce similar paperwork that the employee would need to produce if they were using EPSL for themselves. That documentation should be provided to the employer via the employee.

Q: Define full time for the 80 hours of pay.  Does this mean a person who is working 32 hours gets the 80 hours, or prorated accordingly?

A: Full time is defined as 40 hours a week. A full-time employee will receive the most benefit and be able to receive 80 hours. Part-time employees are defined as anyone under 40 hours a week. Part-time employees are eligible for the number of hours they work on average per a week. For example, employees working at 32 hours a week would be eligible for 64 hours of EPSL.

Q: What are the reasons staff can take off for EPSL?

A: If an employee qualifies for one through six of EPSL and they are not able to telework, they can qualify for the paid sick leave benefit.

Q: If an employer tells someone they can work but a doctor advises the employee to be off, is the employee off? 

A: If an employee is advised by a health care provider to quarantine/isolate due to COVID-19 related reasons, the diagnosis is documented, and the employee cannot telework, the employee qualifies for EPSL. If the employer requires the employee to work while a health care provider stated they should be home due to COVID-19, the employer could be open to penalties from DOL and from DIA/CMS.