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29 CFR part 826 (Paid Leave under FFCRA), annual edition 2020

Summary

Part 826 of 29 CFR Ch. V, Paid Leave under the Families First Coronavirus Response Act, as printed in the 7–1–20 Edition under the Wage and Hour Division. The definitions in § 826.10 cover terms such as Child Care Provider and Son or Daughter, and the part became operational on April 1, 2020, took effect on April 2, 2020 and expires at the end of 2020. Under § 826.20 an Employer must provide Paid Sick Leave to an Employee unable to work because the Employee is subject to a quarantine or isolation order related to COVID–19, has been advised by a health care provider to self-quarantine, is experiencing symptoms and seeking a diagnosis, or is caring for an individual in those circumstances. Under § 826.160 any person is limited to a total of 80 hours of Paid Sick Leave, even after changing Employers.

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“29 CFR part 826 (Paid Leave under FFCRA), annual edition 2020.” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/29-cfr-part-826-paid-leave-under-ffcra-annual-edition-2020-75d2cb68e7/, SHA-256 1aef4dce2061e1ce4651c44670e3b99774baf0973b362954fda74105deb9d31a.

Full text

                               Wage and Hour Division, Labor                                                                        § 826.10

                               employees, regardless of time actually                     PART 826—PAID LEAVE UNDER THE
                               worked or paid, multiplied by the stat-                      FAMILIES FIRST CORONAVIRUS
                               utory 26-workweek entitlement for                            RESPONSE ACT (Eff. until 12-31-
                               military caregiver leave.                                    20)
                                  (b) Increments of FMLA leave for inter-
                               mittent or reduced schedule leave. When                    Sec.
                               an airline flight crew employee takes                      826.10 General.
                               FMLA leave on an intermittent or re-                       826.20 Paid leave entitlements.
                               duced schedule basis, the employer                         826.21 Amount of Paid Sick Leave.
                                                                                          826.22 Amount of pay for Paid Sick Leave.
                               must account for the leave using an in-                    826.23 Amount of Expanded Family and
                               crement no greater than one day. For                           Medical Leave.
                               example, if an airline flight crew em-                     826.24 Amount of pay for Expanded Family
                               ployee needs to take FMLA leave for a                          and Medical Leave.
                               two-hour physical therapy appoint-                         826.25 Calculating the regular rate under
                                                                                              the Family First Coronavirus Response
                               ment, the employer may require the                             Act.
                               employee to use a full day of FMLA                         826.30 Employee eligibility for leave.
                               leave. The entire amount of leave actu-                    826.40 Employer coverage.
                               ally taken (in this example, one day) is                   826.50 Intermittent leave.
                               designated as FMLA leave and counts                        826.60 Leave to care for a child due to
                                                                                              school or place of care closure or child
                               against the employee’s FMLA entitle-                           care    unavailability—Intersection   be-
                               ment.                                                          tween the EPSLA and the EFMLEA.
                                  (c) Application of § 825.205. The rules                 826.70 Leave to care for a child due to
                               governing calculation of intermittent                          School or Place of Care closure or child
                               or reduced schedule FMLA leave set                             care    unavailability—intersection    of
                                                                                              EFMLEA and the FMLA.
                               forth in § 825.205 do not apply to airline
                                                                                          826.80 Employer notice.
                               flight crew employees except that air-                     826.90 Employee notice of need for leave.
                               line flight crew employees are subject                     826.100 Documentation of need for leave.
                               to § 825.205(a)(2), the physical impos-                    826.110 Health care coverage.
                               sibility provision.                                        826.120 Multiemployer plans.
                                                                                          826.130 Return to work.
                                                                                          826.140 Recordkeeping.
                               § 825.803 Special rules for airline flight
                                                                                          826.150 Prohibited acts and enforcement
                                   crew employees, recordkeeping re-                          under the EPSLA.
                                   quirements.                                            826.151 Prohibited acts and enforcement
                                  (a) Employers of eligible airline                           under the EFMLEA.
                               flight crew employees shall make,                          826.152 Filing a complaint with the Federal
                                                                                              Government.
                               keep, and preserve records in accord-                      826.153 Investigative authority of the Sec-
                               ance with the requirements of Subpart                          retary.
                               E of this Part (§ 825.500).                                826.160 Effect on other laws, employer prac-
                                  (b) Covered employers of airline                            tices, and collective bargaining agree-
                               flight crew employees are required to                          ments.
                               maintain certain additional records                          AUTHORITY: Pub. L. 116–127 sections 3102(b)
                               ‘‘on file with the Secretary.’’ To com-                    and 5111(3); Pub. L. 116–136 section 3611(7).
                               ply with this requirement, those em-                         SOURCE: 85 FR 19347, Apr. 6, 2020, unless
                               ployers shall maintain:                                    otherwise noted.
                                  (1) Records and documents con-                            EFFECTIVE DATE NOTE: At 85 FR 19347, Apr.
                               taining information specifying the ap-                     6, 2020, part 826 was added, effective through
                               plicable monthly guarantee with re-                        Dec. 31, 2020.
                               spect to each category of employee to
                                                                                          § 826.10 General.
                               whom such guarantee applies, includ-
                               ing copies of any relevant collective                         (a) Definitions. For the purposes of
                               bargaining agreements or employer                          this rule:
                               policy documents; and                                         Child Care Provider. The term ‘‘Child
                                                                                          Care Provider’’ means a provider who
                                  (2) Records of hours worked and
                                                                                          receives compensation for providing
                               hours paid, as those terms are defined
                                                                                          child care services on a regular basis.
                               in § 825.801(b)(2).                                        The term includes a center-based child
                                                                                          care provider, a group home child care

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                               § 826.10                                                               29 CFR Ch. V (7–1–20 Edition)

                               provider, a family child care provider,                       (B) Includes:
                               or other provider of child care services                      (1) Any person acting directly or in-
                               for compensation that is licensed, regu-                   directly in the interest of an employer
                               lated, or registered under State law as                    in relation to an Employee (within the
                               described in section 9858c(c)(2)(E) of                     meaning of such phrase in section 3(d)
                               Title 42; and satisfies the State and                      of the FLSA (29 U.S.C. 203(d));
                               local requirements, including those re-                       (2) Any successor in interest of an
                               ferred to in section 9858c(c)(2)(F) of                     employer;
                               Title 42. Under the Families First                            (3) Joint employers as defined under
                               Coronavirus Response Act (FFCRA),                          the FLSA, part 791 of this chapter,
                               the eligible child care provider need                      with respect to certain Employees; and
                               not be compensated or licensed if he or                       (4) Integrated employers as defined
                               she is a family member or friend, such                     under the Family and Medical Leave
                               as a neighbor, who regularly cares for                     Act (FMLA), § 825.104(c)(2) of this chap-
                               the Employee’s child.                                      ter.
                                 Commerce. The terms ‘‘Commerce’’                            (C) Includes any Public Agency; and
                               and ‘‘industry or activity affecting                          (D) Includes the Government Ac-
                               commerce’’ mean any activity, busi-                        countability Office and the Library of
                               ness, or industry in commerce or in                        Congress.
                               which a labor dispute would hinder or                         (ii) For purposes of the EPSLA,
                               obstruct commerce or the free flow of                      ‘‘Employer’’ also specifically identifies
                               commerce, and include ‘‘commerce’’,                        the following as an employer:
                               and any ‘‘industry affecting com-                             (A) An entity employing a State Em-
                               merce’’, as defined in paragraphs (1)                      ployee described in section 304(a) of the
                               and (3) of section 501 of the Labor Man-                   Government Employee Rights Act of
                               agement Relations Act of 1947 (29                          1991;
                               U.S.C. 142 (1) and (3)).                                      (B) An employing office, as defined in
                                 COVID–19. The term ‘‘COVID–19’’ has                      section 101 of the Congressional Ac-
                               the meaning given the term in section                      countability Act of 1995;
                               506 of the Coronavirus Preparedness                           (C) An employing office, as defined in
                               Response Supplemental Appropriations                       3 U.S.C. 411(c); and
                               Act, 2020.                                                    (D) An Executive Agency as defined
                                 EFMLEA. The term ‘‘EFMLEA’’                              in section 5 U.S.C. 105, and including
                               means the Emergency Family and                             the U.S. Postal Service and the Postal
                               Medical Leave Expansion Act, Division                      Regulatory Commission.
                               C of the FFCRA.                                               EPSLA. The term ‘‘EPSLA’’ means
                                 Employee. The term ‘‘Employee’’ has                      the Emergency Paid Sick Leave Act,
                               the same meaning given that term in                        Division E of the FFCRA.
                               section 3(e) of the Fair Labor Stand-                         Expanded Family and Medical Leave.
                               ards Act of 1938 (FLSA) (29 U.S.C.                         The term ‘‘Expanded Family and Med-
                               203(e)).                                                   ical Leave’’ means paid leave under the
                                 Eligible Employee. For the purposes of                   EFMLEA.
                               the EFMLEA, the term ‘‘Eligible Em-                           FFCRA. The term ‘‘FFCRA’’ means
                               ployee’’ means an Employee who has                         the Families First Coronavirus Re-
                               been employed for at least 30 calendar                     sponse Act, Public Law 116–127.
                               days by the Employer.                                         FLSA Terms. The terms ‘‘employ’’,
                                 Employer:                                                ‘‘person’’, and ‘‘State’’ have the mean-
                                 (i) Subject to paragraph (ii) of this                    ings given such terms in section 3 of
                               definition, ‘‘Employer’’:                                  the FLSA (29 U.S.C. 203).
                                 (A) Means any person engaged in                             Paid Sick Leave. The term ‘‘Paid Sick
                               Commerce or in any industry or activ-                      Leave’’ means paid leave under the
                               ity affecting commerce that:                               EPSLA.
                                 (1) In the case of a private entity or                      Place of Care. The term ‘‘Place of
                               individual, employs fewer than 500 Em-                     Care’’ means a physical location in
                               ployees; and                                               which care is provided for the Employ-
                                 (2) In the case of a Public Agency or                    ee’s child while the Employee works
                               any other entity that is not a private                     for the Employer. The physical loca-
                               entity or individual, employs one or                       tion does not have to be solely dedi-
                               more Employees;                                            cated to such care. Examples include

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                               Wage and Hour Division, Labor                                                                        § 826.10

                               day care facilities, preschools, before                    means a biological, adopted, or foster
                               and after school care programs,                            child, a stepchild, a legal ward, or a
                               schools, homes, summer camps, sum-                         child of a person standing in loco
                               mer enrichment programs, and respite                       parentis, who is under 18 years of age;
                               care programs.                                             or 18 years of age or older who is in-
                                  Public Agency. The term ‘‘Public                        capable of self-care because of a mental
                               Agency’’ means the Government of the                       or physical disability.
                               United States; the government of a                            Subject to a Quarantine or Isolation
                               State or political subdivision thereof;                    Order. For the purposes of the EPSLA,
                               any agency of the United States (in-                       a quarantine or isolation order in-
                               cluding the United States Postal Serv-                     cludes quarantine, isolation, contain-
                               ice and Postal Regulatory Commis-                          ment, shelter-in-place, or stay-at-home
                               sion), a State, or a political subdivision                 orders issued by any Federal, State, or
                               of a State; or any interstate govern-                      local government authority that cause
                               mental agency. See 29 U.S.C. 203(x); 29                    the Employee to be unable to work
                               U.S.C. 5110(2)(B)(i)(III). A Public Agen-                  even though his or her Employer has
                               cy shall be considered to be a person                      work that the Employee could perform
                               engaged in Commerce or in an industry                      but for the order. This also includes
                               or activity affecting Commerce. See 29                     when a Federal, State, or local govern-
                               U.S.C. 2611(4)(B); 29 U.S.C. 5110(2)(B)(ii).               ment authority has advised categories
                               Whether an entity is a Public Agency,                      of citizens (e.g., of certain age ranges
                               as distinguished from a private Em-                        or of certain medical conditions) to
                               ployer, is determined by whether the                       shelter in place, stay at home, isolate,
                               agency has taxing authority, or wheth-                     or quarantine, causing those categories
                               er the chief administrative officer or                     of Employees to be unable to work
                               board, etc., is elected by the voters-at-                  even though their Employers have
                               large or their appointment is subject to                   work for them.
                               approval by an elected official. See                          Telework. The term ‘‘Telework’’
                               § 825.108 of this chapter.                                 means work the Employer permits or
                                  Public Health Emergency. The term                       allows an Employee to perform while
                               ‘‘Public Health Emergency’’ means an                       the Employee is at home or at a loca-
                               emergency with respect to COVID–19                         tion other than the Employee’s normal
                               declared by a Federal, State, or local                     workplace. An Employee is able to
                               authority.                                                 Telework if: His or her Employer has
                                  School. The term ‘‘School’’ means an                    work for the Employee; the Employer
                               ‘‘elementary school’’ or ‘‘secondary                       permits the Employee to work from
                               school’’ as such terms are defined                         the Employee’s location; and there are
                               below, in accordance with section 8101                     no extenuating circumstances (such as
                               of the Elementary and Secondary Edu-                       serious COVID–19 symptoms) that pre-
                               cation Act of 1965 (20 U.S.C. 7801). ‘‘El-                 vent the Employee from performing
                               ementary school’’ means a nonprofit                        that work. Telework may be performed
                               institutional day or residential school,                   during normal hours or at other times
                               including a public elementary charter                      agreed by the Employer and Employee.
                               school that provides elementary edu-                       Telework is work for which wages must
                               cation, as determined under State law.                     be paid as required by applicable law
                               ‘‘Secondary school’’ means a nonprofit                     and is not compensated as paid leave
                               institutional day or residential school,                   under the EPSLA or the EFMLEA. Em-
                               including a public secondary charter                       ployees who are teleworking for
                               school that provides secondary edu-                        COVID–19 related reasons must be com-
                               cation, as determined under State law,                     pensated for all hours actually worked
                               except that the term does not include                      and which the Employer knew or
                               any education beyond grade 12.                             should have known were worked by the
                                  Secretary. The term ‘‘Secretary’’                       Employee. However, the provisions of
                               means the Secretary of Labor or his or                     § 790.6 of this chapter shall not apply to
                               her designee.                                              Employees while they are teleworking
                                  Son or Daughter. The term ‘‘Son or                      for COVID–19 related reasons.
                               Daughter’’ has the meaning given such                         (b) Effective period. (1) This part be-
                               term in section 101 of the FMLA (29                        came operational on April 1, 2020, and
                               U.S.C. 2611). Accordingly, the term                        effective on April 2, 2020.

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                               § 826.20                                                               29 CFR Ch. V (7–1–20 Edition)

                                 (2) This part expires on December 31,                    place or by Telework. An Employee
                               2020.                                                      Subject to a Quarantine or Isolation
                               [85 FR 19347, Apr. 6, 2020, as amended at 85
                                                                                          Order may not take Paid Sick Leave
                               FR 20157, Apr. 10, 2020]                                   where the Employer does not have
                                                                                          work for the Employee as a result of
                               § 826.20 Paid leave entitlements.                          the order or other circumstances.
                                  (a) Qualifying reasons for Paid Sick                      (3) Advised by a health care provider to
                               Leave. (1) An Employer shall provide to                    self-quarantine. For the purposes of this
                               each of its Employees Paid Sick Leave                      section, the term health care provider
                               to the extent that Employee is unable                      has the same meaning as that term is
                               to work due to any of the following                        defined in § 825.102 of this chapter. An
                               reasons:                                                   Employee may take Paid Sick Leave
                                  (i) The Employee is subject to a Fed-                   for the reason described in paragraph
                               eral, State, or local quarantine or iso-                   (a)(1)(ii) of this section only if:
                               lation order related to COVID–19;                            (i) A health care provider advises the
                                  (ii) The Employee has been advised                      Employee to self-quarantine based on a
                               by a health care provider to self-quar-                    belief that—
                               antine due to concerns related to                            (A) The Employee has COVID–19;
                               COVID–19;                                                    (B) The Employee may have COVID–
                                  (iii) The Employee is experiencing                      19; or
                               symptoms of COVID–19 and seeking                             (C) The Employee is particularly vul-
                               medical diagnosis from a health care                       nerable to COVID–19; and
                               provider;                                                    (ii) Following the advice of a health
                                  (iv) The Employee is caring for an in-                  care provider to self-quarantine pre-
                               dividual who is subject to an order as                     vents the Employee from being able to
                               described in this paragraph (a)(1)(i) or                   work, either at the Employee’s normal
                               directed as described in this paragraph                    workplace or by Telework.
                               (a)(1)(ii);                                                  (4) Seeking medical diagnosis for
                                  (v) The Employee is caring for his or                   COVID–19. An Employee may take Paid
                               her Son or Daughter whose School or                        Sick Leave for the reason described in
                               Place of Care has been closed for a pe-                    paragraph (a)(1)(iii) of this section if
                               riod of time, whether by order of a                        the Employee is experiencing any of
                               State or local official or authority or                    the following symptoms:
                               at the decision of the individual School                     (i) Fever;
                               or Place of Care, or the Child Care Pro-                     (ii) Dry cough;
                               vider of such Son or Daughter is un-                         (iii) Shortness of breath; or
                               available, for reasons related to                            (iv) Any other COVID–19 symptoms
                               COVID–19; or                                               identified by the U.S. Centers for Dis-
                                  (vi) The Employee has a substan-                        ease Control and Prevention.
                               tially similar condition as specified by                     (v) Any Paid Sick Leave taken for
                               the Secretary of Health and Human                          the reason described in paragraph
                               Services, in consultation with the Sec-                    (a)(1)(iii) of this subsection is limited
                               retary of the Treasury and the Sec-                        to time the Employee is unable to
                               retary of Labor. The substantially                         work because the Employee is taking
                               similar condition may be defined at                        affirmative steps to obtain a medical
                               any point during the Effective Period.                     diagnosis, such as making, waiting for,
                               This rule became operational on April                      or attending an appointment for a test
                               1, 2020, and will be effective April 2,                    for COVID–19.
                               2020, to December 31, 2020.                                  (5) Caring for an individual. For the
                                  (2) Subject to a Quarantine or Isolation                purpose of paragraph (a)(1)(iv) of this
                               Order. Any Employee Subject to a                           section, ‘‘individual’’ means an Em-
                               Quarantine or Isolation Order may                          ployee’s immediate family member, a
                               take Paid Sick Leave for the reason de-                    person who regularly resides in the
                               scribed in paragraph (a)(1)(i) of this                     Employee’s home, or a similar person
                               section only if, but for being subject to                  with whom the Employee has a rela-
                               the order, he or she would be able to                      tionship that creates an expectation
                               perform work that is otherwise allowed                     that the Employee would care for the
                               or permitted by his or her Employer,                       person if he or she were quarantined or
                               either at the Employee’s normal work-                      self-quarantined. For this purpose,

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                               Wage and Hour Division, Labor                                                                        § 826.21

                               ‘‘individual’’ does not include persons                    Employee may take Expanded Family
                               with whom the Employee has no per-                         and Medical Leave because he or she is
                               sonal relationship.                                        unable to work due to a need to care
                                  (6) An Employee may not take Paid                       for his or her Son or Daughter whose
                               Sick Leave for the reason described in                     School or Place of Care has been
                               paragraph (a)(1)(iv) of this section un-                   closed, or whose Child Care Provider is
                               less, but for a need to care for an indi-                  unavailable, for reasons related to
                               vidual, the Employee would be able to                      COVID–19. An Eligible Employee has
                               perform work for his or her Employer,                      need to take Expanded Family and
                               either at the Employee’s normal work-                      Medical Leave for the purposes of this
                               place or by Telework. An Employee                          paragraph (b) only if no suitable person
                               caring for an individual may not take                      is available to care for his or her Son
                               Paid Sick Leave where the Employer                         or Daughter during the period of such
                               does not have work for the Employee.                       leave.
                                  (7) Caring for an individual. An Em-                      (c) Impact on FLSA exemptions. The
                               ployee may take Paid Sick Leave for                        taking of Paid Sick Leave or Expanded
                               the reason described in paragraph                          Family and Medical Leave shall not
                               (a)(1)(iv) of this section if the Em-                      impact an Employee’s status or eligi-
                               ployee is unable to perform work for                       bility for any exemption from the re-
                               his or her Employer and if the indi-                       quirements of section 6 or 7, or both, of
                               vidual depends on the Employee to care                     the FLSA.
                               for him or her and is either:
                                                                                          [85 FR 19347, Apr. 6, 2020, as amended at 85
                                  (i) Subject to a Quarantine or Isola-
                                                                                          FR 20157, Apr. 10, 2020]
                               tion Order as described in paragraph
                               (a)(1)(i) of this section; or                              § 826.21    Amount of Paid Sick Leave.
                                  (ii) Has been advised to self-quar-
                               antine by a health care provider as de-                       (a) Full-time Employees. (1) A full-time
                               scribed in paragraph (a)(1)(ii) of this                    Employee is entitled to up to 80 hours
                               section, because of a belief that—                         of Paid Sick Leave.
                                  (A) The individual has COVID–19;                           (2) An Employee is considered to be a
                                  (B) The individual may have COVID–                      full-time Employee under this section
                               19 due to known exposure or symptoms;                      if he or she is normally scheduled to
                               or                                                         work at least 40 hours each workweek.
                                  (C) The individual is particularly vul-                    (3) An Employee who does not have a
                               nerable to COVID–19.                                       normal       weekly     schedule      under
                                  (8) Caring for a Son or Daughter. An                    § 826.21(a)(2) is considered to be a full-
                               Employee has a need to take Paid Sick                      time Employee under this section if
                               Leave if he or she is unable to work                       the average number of hours per work-
                               due to a need to care for his or her Son                   week that the Employee was scheduled
                               or Daughter whose School or Place of                       to work, including hours for which the
                               Care has been closed, or whose Child                       Employee took leave of any type, is at
                               Care Provider is unavailable, for rea-                     least 40 hours per workweek over a pe-
                               sons related to COVID–19 only if no                        riod of time that is the lesser of:
                               other suitable person is available to                         (i) The six-month period ending on
                               care for the Son or Daughter during                        the date on which the Employee takes
                               the period of such leave.                                  Paid Sick Leave; or
                                  (9) An Employee may not take Paid                          (ii) The entire period of the Employ-
                               Sick Leave to care for his or her Son or                   ee’s employment.
                               Daughter unless, but for a need to care                       (b) Part-time Employees. An Employee
                               for the Son or Daughter, the Employee                      who does not satisfy the requirements
                               would be able to perform work for his                      of § 826.21(a) is considered to be a part-
                               or her Employer, either at the Employ-                     time Employee.
                               ee’s normal workplace or by Telework.                         (1) If the part-time Employee has a
                               An Employee caring for his or her Son                      normal weekly schedule, the Employee
                               or Daughter may not take Paid Sick                         is entitled to up to the number of hours
                               Leave where the Employer does not                          of Paid Sick Leave equal to the number
                               have work for the Employee.                                of hours that the Employee is normally
                                  (b) Qualifying reason for Expanded                      scheduled to work over two work-
                               Family and Medical Leave. An Eligible                      weeks.

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                               § 826.22                                                               29 CFR Ch. V (7–1–20 Edition)

                                  (2) If the part-time Employee lacks a                     (c) The limitations on payments are
                               normal       weekly     schedule   under                   as follows:
                               § 826.21(b)(1), the number of hours of                       (1) In no event shall an Employer be
                               Paid Sick Leave to which the Em-                           required to pay more than $511 per day
                               ployee is entitled is calculated as fol-                   and $5,110 in the aggregate per Em-
                               lows:                                                      ployee when an Employee takes Paid
                                  (i) If the part-time Employee has                       Sick Leave for qualifying reasons set
                               been employed for at least six months,                     forth in § 826.20(a)(1)(i) through (iii).
                               the Employee is entitled to up to the                        (2) In no event shall an Employer be
                               number of hours of Paid Sick Leave                         required to pay more than $200 per day
                               equal to fourteen times the average                        and $2,000 in the aggregate per Em-
                               number of hours that the Employee                          ployee when an Employee takes Paid
                               was scheduled to work each calendar                        Sick Leave for qualifying reasons set
                               day over the six-month period ending                       forth in § 826.20(a)(1)(iv) through (vi).
                               on the date on which the Employee
                               takes Paid Sick Leave, including any                       [85 FR 20157, Apr. 10, 2020]
                               hours for which the Employee took
                                                                                          § 826.23 Amount of Expanded Family
                               leave of any type.                                             and Medical Leave.
                                  (ii) If the part-time Employee has
                               been employed for fewer than six                              (a) An Eligible Employee is entitled
                               months, the Employee is entitled to up                     to take up to twelve workweeks of Ex-
                               to the number of hours of Paid Sick                        panded Family and Medical Leave dur-
                               Leave equal to fourteen times the num-                     ing the period April 1, 2020 through De-
                               ber of hours the Employee and the Em-                      cember 31, 2020.
                               ployer agreed to at the time of hiring                        (b) Any time period of Expanded
                               that the Employee would work, on av-                       Family and Medical Leave that an Eli-
                               erage, each calendar day. If there is no                   gible Employee takes counts towards
                               such agreement, the Employee is enti-                      the twelve workweeks of FMLA leave
                               tled to up to the number of hours of                       to which the Eligible Employee is enti-
                               Paid Sick Leave equal to fourteen                          tled for any qualifying reason in a
                               times the average number of hours per                      twelve-month period under § 825.200 of
                               calendar day that the Employee was                         this chapter, see § 826.70.
                               scheduled to work over the entire pe-                         (c) Section 2612(d)(2)(A) of the FMLA
                               riod of employment, including hours                        shall be applied, provided however,
                               for which the Employee took leave of                       that the Eligible Employee may elect,
                               any type.                                                  and the Employer may require the Eli-
                                                                                          gible Employee, to use only leave that
                               § 826.22 Amount of pay for Paid Sick                       would be available to the Eligible Em-
                                    Leave.                                                ployee for the purpose set forth in
                                  (a) Subject to paragraph (c) of this                    § 826.20(b) under the Employer’s exist-
                               section, for each hour of Paid Sick                        ing policies, such as personal leave or
                               Leave taken by an Employee for quali-                      paid time off. Any leave that an Eligi-
                               fying reasons set forth in § 826.20(a)(1)(i)               ble Employee elects to use or that an
                               through (iii), the Employer shall pay                      Employer requires the Eligible Em-
                               the higher of:                                             ployee to use would run concurrently
                                  (1) The Employee’s average regular                      with Expanded Family and Medical
                               rate as computed under § 826.25;                           Leave taken under this section.
                                  (2) The Federal minimum wage to
                               which the Employee is entitled; or                         § 826.24 Amount of pay for Expanded
                                  (3) Any State or local minimum wage                         Family and Medical Leave.
                               to which the Employee is entitled.                           Subject to § 826.60, after the initial
                                  (b) Subject to paragraph (c) of this                    two weeks of Expanded Family and
                               section, for each hour of Paid Sick                        Medical Leave, the Employer shall pay
                               Leave taken by an Employee for quali-                      the Eligible Employee two-thirds of
                               fying      reasons     set    forth      in                the Eligible Employee’s average reg-
                               § 826.20(a)(1)(iv) through (vi), the Em-                   ular rate, as computed under § 826.25,
                               ployer shall pay the Employee two-                         times the Eligible Employee’s sched-
                               thirds of the amount described in                          uled number of hours for each day of
                               § 826.24(a).                                               such leave taken.

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                               Wage and Hour Division, Labor                                                                        § 826.30

                                 (a) In no event shall an Employer be                     Employee two-thirds of the Eligible
                               required to pay more than $200 per day                     Employee’s average regular rate, as
                               and $10,000 in the aggregate per Eligi-                    computed under § 826.25.
                               ble Employee when an Eligible Em-                            (d) Notwithstanding paragraph (a) of
                               ployee takes Expanded Family and                           this section, if an Eligible Employee
                               Medical Leave for up to ten weeks after                    elects or is required to use leave avail-
                               the initial two-week period of unpaid                      able to the Eligible Employee for the
                               Expanded Family and Medical Leave.                         purpose set forth in § 826.20(b) under the
                                 (b) For the purpose of this section,                     Employer’s policies, such as vacation
                               the ‘‘scheduled number of hours’’ is de-                   or personal leave or paid time off, con-
                               termined as follows:                                       currently with Expanded Family and
                                 (1) If the Eligible Employee has a                       Medical Leave, the Employer must pay
                               normal work schedule, the number of                        the Eligible Employee a full day’s pay
                               hours the Eligible Employee is nor-                        for that day. However, the Employer is
                               mally scheduled to work on that work-                      capped at taking $200 a day or $10,000 in
                               day;                                                       the aggregate in tax credits for Ex-
                                 (2) If the Eligible Employee has a                       panded Family and Medical Leave paid
                               work schedule that varies to such an                       under the EFMLEA.
                               extent that an Employer is unable to
                               determine the number of hours the Eli-                     § 826.25 Calculating the regular rate
                               gible Employee would have worked on                              under the Family First Coronavirus
                                                                                                Response Act.
                               the day for which leave is taken and
                               has been employed for at least six                            (a) Average regular rate. The ‘‘average
                               months, the average number of hours                        regular rate’’ used to compute pay for
                               the Eligible Employee was scheduled to                     Paid Sick Leave and Expanded Family
                               work each workday, over the six-                           and Medical Leave is calculated as fol-
                               month period ending on the date on                         lows:
                               which the Eligible Employee first                             (1) Use the methods contained in
                               takes Expanded Family and Medical                          parts 531 and 778 of this chapter to
                               Leave, including hours for which the                       compute the regular rate for each full
                               Eligible Employee took leave of any                        workweek in which the Employee has
                               type; or                                                   been employed over the lesser of:
                                 (3) If the Eligible Employee has a                          (i) The six-month period ending on
                               work schedule that varies to such an                       the date on which the Employee takes
                               extent that an Employer is unable to                       Paid Sick Leave or Expanded Family
                               determine the number of hours the Eli-                     and Medical Leave; or
                               gible Employee would have worked on                           (ii) The entire period of employment.
                               the day for which leave is taken and                          (2) Compute the average of the week-
                               the Eligible Employee has been em-                         ly regular rates under paragraph (a)(1)
                               ployed for fewer than six months, the                      of this section, weighted by the number
                               average number of hours the Eligible                       of hours worked for each workweek.
                               Employee and the Employer agreed at                           (b) Calculating the regular rate for com-
                               the time of hiring that the Eligible                       missions, tips, and piece rates. An Em-
                               Employee would work each workday. If                       ployee’s commissions, tips, and piece
                               there is no such agreement, the sched-                     rates are incorporated into the regular
                               uled number of hours is equal to the                       rate for purposes of the FFCRA to the
                               average number of hours per workday                        same extent that they are included in
                               that the Eligible Employee was sched-                      the calculation of the regular rate
                               uled to work over the entire period of                     under the FLSA, and § 531.60 and part
                               employment, including hours for which                      778 of this chapter.
                               the Eligible Employee took leave of
                               any type.                                                  § 826.30 Employee eligibility for leave.
                                 (c) As an alternative, the amount of                        (a) Eligibility under the EPSLA. All
                               pay for Expanded Family and Medical                        Employees of an Employer are eligible
                               Leave may be computed in hourly in-                        for Paid Sick Leave under the EPSLA,
                               crements instead a full day. For each                      except as provided in paragraphs (c)
                               hour of Expanded Family and Medical                        and (d) of this section and in § 826.40(b).
                               Leave taken after the first two weeks,                        (b) Eligibility under the EFMLEA. All
                               the Employer shall pay the Eligible                        Employees employed by an Employer

                                                                                    903



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                               § 826.30                                                               29 CFR Ch. V (7–1–20 Edition)

                               for at least thirty calendar days are el-                  tor’s office, hospital, health care cen-
                               igible for Expanded Family and Med-                        ter, clinic, post-secondary educational
                               ical Leave under the EFMLEA, except                        institution offering health care in-
                               as provided in paragraphs (c) and (d) in                   struction, medical school, local health
                               this section and in § 826.40(b).                           department or agency, nursing facility,
                                 (1) An Employee is considered to                         retirement facility, nursing home,
                               have been employed by an Employer                          home health care provider, any facility
                               for at least thirty calendar days if:                      that performs laboratory or medical
                                 (i) The Employer had the Employee                        testing, pharmacy, or any similar in-
                               on its payroll for the thirty calendar                     stitution, Employer, or entity. This in-
                               days immediately prior to the day that                     cludes any permanent or temporary in-
                               the Employee’s leave would begin; or
                                                                                          stitution, facility, location, or site
                                 (ii) The Employee was laid off or oth-
                                                                                          where medical services are provided
                               erwise terminated by the Employer on
                               or after March 1, 2020, and rehired or                     that are similar to such institutions.
                               otherwise reemployed by the Employer                         (ii) This definition includes any indi-
                               on or before December 31, 2020, pro-                       vidual employed by an entity that con-
                               vided that the Employee had been on                        tracts with any of these institutions
                               the Employer’s payroll for thirty or                       described above to provide services or
                               more of the sixty calendar days prior                      to maintain the operation of the facil-
                               to the date the Employee was laid off                      ity where that individual’s services
                               or otherwise terminated.                                   support the operation of the facility.
                                 (2) If an Employee employed by a                         This also includes anyone employed by
                               temporary placement agency is subse-                       any entity that provides medical serv-
                               quently hired by the Employer, the                         ices, produces medical products, or is
                               Employer will count the days worked                        otherwise involved in the making of
                               as a temporary Employee at the Em-                         COVID–19 related medical equipment,
                               ployer toward the thirty-day eligibility                   tests, drugs, vaccines, diagnostic vehi-
                               period.                                                    cles, or treatments. This also includes
                                 (3) An Employee who has been em-                         any individual that the highest official
                               ployed by a covered Employer for at                        of a State or territory, including the
                               least thirty calendar days is eligible                     District of Columbia, determines is a
                               for Expanded Family and Medical                            health care provider necessary for that
                               Leave under the EFMLEA regardless of
                                                                                          State’s or territory’s or the District of
                               whether the Employee would otherwise
                                                                                          Columbia’s response to COVID–19.
                               be eligible for leave under the FMLA.
                               Thus, for example, an Employee need                          (iii) The definition of ‘‘health care
                               not have been employed for 1,250 hours                     provider’’ contained in this section ap-
                               of service and twelve months of em-                        plies only for the purpose of deter-
                               ployment as otherwise required under                       mining whether an Employer may elect
                               the FMLA, see § 825.110(a)(1) and (2) of                   to exclude an Employee from taking
                               this chapter, to be eligible for leave                     leave under the EPSLA and/or the
                               under the EFMLEA.                                          EFMLEA, and does not otherwise apply
                                 (c) Exclusion of Employees who are                       for purposes of the FMLA or section
                               health care providers and emergency re-                    5102(a)(2) of the EPSLA.
                               sponders. An Employer whose Employee                         (2) Emergency responders—
                               is a health care provider or an emer-                        (i) For the purposes of Employees
                               gency responder may exclude such Em-                       who may be excluded from Paid Sick
                               ployee from the EPSLA’s Paid Sick                          Leave or Expanded Family and Medical
                               Leave     requirements       and/or   the                  Leave by their Employer under the
                               EFMLEA’s Expanded Family and Med-                          FFCRA, an emergency responder is
                               ical Leave requirements.                                   anyone necessary for the provision of
                                 (1) Health care provider—                                transport, care, healthcare, comfort
                                 (i) For the purposes of this definition                  and nutrition of such patients, or oth-
                               Employees who may be exempted from
                                                                                          ers needed for the response to COVID–
                               Paid Sick Leave or Expanded Family
                                                                                          19. This includes but is not limited to
                               and Medical Leave by their Employer
                               under the FFCRA, a health care pro-
                               vider is anyone employed at any doc-

                                                                                    904



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                               Wage and Hour Division, Labor                                                                        § 826.40

                               military or national guard, law en-                        § 826.40    Employer coverage.
                               forcement officers, correctional insti-
                                                                                             (a) Private Employers. Any private en-
                               tution personnel, fire fighters, emer-
                                                                                          tity or individual who employs fewer
                               gency medical services personnel, phy-                     than 500 Employees must provide Paid
                               sicians, nurses, public health per-                        Sick Leave and Expanded Family and
                               sonnel, emergency medical techni-                          Medical Leave, except as provided in
                               cians, paramedics, emergency manage-                       paragraph (b) of this section or in
                               ment personnel, 911 operators, child                       § 826.30(c).
                               welfare workers and service providers,                        (1) To determine the number of Em-
                               public works personnel, and persons                        ployees employed, the Employer must
                               with skills or training in operating spe-                  count all full-time and part-time Em-
                               cialized equipment or other skills need-                   ployees employed within the United
                               ed to provide aid in a declared emer-                      States at the time the Employee would
                               gency, as well as individuals who work                     take leave. For purposes of this count,
                               for such facilities employing these in-                    every part-time Employee is counted
                               dividuals and whose work is necessary                      as if he or she were a full-time Em-
                               to maintain the operation of the facil-                    ployee.
                               ity. This also includes any individual                        (i) For this purpose, ‘‘within the
                               whom the highest official of a State or                    United States’’ means any State within
                               territory, including the District of Co-                   the United States, the District of Co-
                               lumbia, determines is an emergency re-                     lumbia, or any Territory or possession
                               sponder necessary for that State’s or                      of the United States.
                               territory’s or the District of Colum-                         (ii) The number of Employees in-
                               bia’s response to COVID–19.                                cludes:
                                 (ii) [Reserved]                                             (A) All Employees currently em-
                                 (d) Exclusion by OMB from EFMLEA.                        ployed, regardless of how long those
                               The Director of the Office of Manage-                      Employees have worked for the Em-
                               ment and Budget (OMB) has authority                        ployer;
                               to exclude, for good cause, certain U.S.                      (B) Any Employees on leave of any
                               Government Employers with respect to                       kind;
                               certain categories of Executive Branch                        (C) Employees of temporary place-
                               Eligible Employees from the require-                       ment agencies who are jointly em-
                               ment to provide paid leave under the                       ployed under the FLSA, see part 791 of
                               EFMLEA. See CARES Act section 4605.                        this chapter, by the Employer and an-
                                 (e) Exclusion by OMB from EPSLA.                         other Employer (regardless of which
                               The Director of the OMB has authority                      Employer’s payroll the Employee ap-
                               to exclude certain Employees, for good                     pears on); and
                               cause, from the definition of ‘‘Em-                           (D) Day laborers supplied by a tem-
                               ployee’’ for purposes of the EPSLA. See                    porary placement agency (regardless of
                               CARES Act section 4605. The cat-                           whether the Employer is the tem-
                               egories of Employees the Director of                       porary placement agency or the client
                               the OMB has authority to so exclude                        firm).
                               from EPSLA are:                                               (iii) The number of Employees does
                                 (1) Federal officers or Employees cov-                   not include workers who are inde-
                               ered under Title II of the FMLA (which                     pendent contractors, rather than Em-
                               is codified in subchapter V of chapter                     ployees, under the FLSA. Nor does the
                               63 of title 5 of the United States Code);                  number of Employees include workers
                                                                                          who have been laid off or furloughed
                                 (2) Other individuals occupying a po-
                                                                                          and have not subsequently been reem-
                               sition in the civil service (as that term
                                                                                          ployed.
                               is defined in 5 U.S.C. 2101(1)); and
                                                                                             (2) To determine the number of Em-
                                 (3) Employees of a United States Ex-
                                                                                          ployees employed, all common Employ-
                               ecutive Agency, as defined in 5 U.S.C.                     ees of joint employers or all Employees
                               105, including the U.S. Postal Service                     of integrated employers must be count-
                               and U.S. Postal Regulatory Commis-                         ed together.
                               sion.                                                         (i) Typically, a corporation (includ-
                               [85 FR 19347, Apr. 6, 2020, as amended at 85               ing its separate establishments or divi-
                               FR 20157, Apr. 10, 2020]                                   sions) is considered a single Employer

                                                                                    905



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                               § 826.40                                                               29 CFR Ch. V (7–1–20 Edition)

                               and all of its Employees must be count-                    or section 5102(a)(5) of the EPSLA, and
                               ed together.                                               these labor or services are needed for
                                 (ii) Where one corporation has an                        the small business to operate at a
                               ownership interest in another corpora-                     minimal capacity.
                               tion, the two corporations are separate                       (2) To elect this small business ex-
                               Employers unless they are joint em-                        emption, the Employer must document
                               ployers under the FLSA, see part 791 of                    that a determination has been made
                               this chapter, with respect to certain                      pursuant to the criteria set forth by
                               Employees.                                                 the Department in § 826.40(b)(1). The
                                 (iii) In general, two or more entities                   Employer should not send such docu-
                               are separate Employers unless they                         mentation to the Department, but
                               meet the integrated employer test                          rather retain the records in its files.
                               under the FMLA. See § 825.104(c)(2) of                        (3) Regardless of whether a small Em-
                               this chapter. If two entities are an in-                   ployer chooses to exempt one or more
                               tegrated employer under this test, then                    Employees, the Employer is still re-
                               Employees of all entities making up                        quired to post a notice pursuant to
                               the integrated employer must be                            § 826.80.
                               counted.                                                      (c) Public Employers. (1) Any public
                                 (b) Exemption from requirement to pro-                   Employer must provide its Employees
                               vide leave under the EPSLA Section                         Paid Sick Leave except as provided in
                               5102(a)(5) and the EFMLEA for Employers
                                                                                          § 826.30(c) through (d).
                               with fewer than 50 Employees.
                                                                                             (2) Any public Employer must pro-
                                 (1) An Employer, including a reli-
                                                                                          vide its Eligible Employees Expanded
                               gious or nonprofit organization, with
                                                                                          Family and Medical Leave, except as
                               fewer than 50 Employees (small busi-
                                                                                          provided in paragraph (c)(3) of this sec-
                               ness) is exempt from providing Paid
                                                                                          tion and in § 826.30(c) through (d).
                               Sick Leave under the EPSLA and Ex-
                               panded Family and Medical Leave                               (3) The EFMLEA amended only Title
                               under the EFMLEA when the imposi-                          I of the FMLA, resulting in a divide in
                               tion of such requirements would jeop-                      coverage as to Employees of the United
                               ardize the viability of the business as a                  States and of agencies of the United
                               going concern. A small business under                      States (Federal Employees). Federal
                               this section is entitled to this exemp-                    Employees covered by Title I of the
                               tion if an authorized officer of the busi-                 FMLA are eligible for Expanded Fam-
                               ness has determined that:                                  ily and Medical Leave. But most Fed-
                                 (i) The leave requested under either                     eral Employees are instead covered
                               section 102(a)(1)(F) of the FMLA or sec-                   under Title II of the FMLA, which was
                               tion 5102(a)(5) of the EPSLA would re-                     not amended by the EFMLEA. Such
                               sult in the small business’s expenses                      Federal Employees are not within the
                               and financial obligations exceeding                        EFMLEA’s purview and are therefore
                               available business revenues and cause                      not eligible for Expanded Family and
                               the small business to cease operating                      Medical Leave. The Federal Employees
                               at a minimal capacity;                                     covered by Title I of the FMLA are
                                 (ii) The absence of the Employee or                      therefore eligible for Expanded Family
                               Employees requesting leave under ei-                       and Medical Leave, subject to the limi-
                               ther section 102(a)(1)(F) of the FMLA                      tations and exceptions set forth in
                               or section 5102(a)(5) of the EPSLA                         § 826.30(b) through (d), including:
                               would entail a substantial risk to the                        (i) Employees of the U.S. Postal
                               financial health or operational capa-                      Service;
                               bilities of the business because of their                     (ii) Employees of the U.S. Postal
                               specialized skills, knowledge of the                       Regulatory Commission;
                               business, or responsibilities; or                             (iii) Part-time Employees who do not
                                 (iii) There are not sufficient workers                   have an established regular tour of
                               who are able, willing, and qualified,                      duty during the administrative work-
                               and who will be available at the time                      week;
                               and place needed, to perform the labor                        (iv) Employees serving under an
                               or services provided by the Employee                       intermittent appointment or tem-
                               or Employees requesting leave under                        porary appointment with a time limi-
                               either section 102(a)(1)(F) of the FMLA                    tation of one year or less;

                                                                                    906



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                               Wage and Hour Division, Labor                                                                        § 826.60

                                 (v) Employees of the Government Ac-                      tently, and in any agreed increment of
                               countability Office;                                       time (but only when the Employee is
                                 (vi) Employees of the Library of Con-                    unavailable to Telework because of a
                               gress; and                                                 COVID–19 related reason).
                                 (vii) Other Federal Employees not                          (d) Calculation of leave. If an Em-
                               covered by Title II of the FMLA.                           ployee takes Paid Sick Leave or Ex-
                                                                                          panded Family and Medical Leave
                               § 826.50 Intermittent leave.                               intermittently as the Employee and
                                  (a) General Rule. Subject to the condi-                 Employer have agreed, only the
                               tions and applicable limits, an Em-                        amount of leave actually taken may be
                               ployee may take Paid Sick Leave or                         counted toward the Employee’s leave
                               Expanded Family and Medical Leave                          entitlements. For example, an Em-
                               intermittently (i.e., in separate periods                  ployee who normally works forty hours
                               of time, rather than one continuous pe-                    in a workweek and only takes three
                               riod) only if the Employer and Em-                         hours of leave each work day (for a
                               ployee agree. The Employer and Em-                         weekly total of fifteen hours) has only
                               ployee may memorialize in writing any                      taken fifteen hours of the Employee’s
                               agreement under this section, but a                        Paid Sick Leave or 37.5% of a work-
                               clear and mutual understanding be-                         week of the Employee’s Expanded
                               tween the parties is sufficient.                           Family and Medical Leave entitle-
                                  (b) Reporting to Worksite. The ability                  ment.
                               of an Employee to take Paid Sick                           [85 FR 19347, Apr. 6, 2020, as amended at 85
                               Leave or Expanded Family and Medical                       FR 20157, Apr. 10, 2020]
                               Leave intermittently while reporting
                               to an Employer’s worksite depends                          § 826.60 Leave to care for a child due
                               upon the reason for the leave.                                  to school or place of care closure or
                                  (1) If the Employer and Employee                             child care unavailability—Intersec-
                               agree, an Employee may take up to the                           tion between the EPSLA and the
                               entire portion of Paid Sick Leave or                            EFMLEA.
                               Expanded Family and Medical Leave                             (a) An Eligible Employee who needs
                               intermittently to care for the Employ-                     leave to care for his or her Son or
                               ee’s Son or Daughter whose School or                       Daughter whose School or Place of
                               Place of Care is closed, or Child Care                     Care is closed, or whose Child Care Pro-
                               Provider is unavailable, because of rea-                   vider is unavailable, due to COVID–19
                               sons related to COVID–19. Under such                       related reasons may be eligible to take
                               circumstances, intermittent Paid Sick                      leave under both the EPSLA and the
                               Leave or paid Expanded Family and                          EFMLEA. If so, the benefits provided
                               Medical Leave may be taken in any in-                      by the EPSLA run concurrently with
                               crement of time agreed to by the Em-                       those provided under the EFMLEA.
                               ployer and Employee.                                          (1) Intersection between the EPSLA and
                                  (2) An Employee may not take Paid                       the EFMLEA. An Eligible Employee
                               Sick Leave intermittently if the leave                     may take up to twelve weeks of Ex-
                               is taken for any of the reasons speci-                     panded Family and Medical Leave to
                               fied in § 826.20(a)(1)(i) through (iv) and                 care for his or her Son or Daughter
                               (vi). Once the Employee begins taking                      whose School or Place of Care has been
                               Paid Sick Leave for one or more of                         closed, or whose Child Care Provider is
                               such reasons, the Employee must use                        unavailable, due to COVID–19 related
                               the permitted days of leave consecu-                       reasons.
                               tively until the Employee no longer                           (2) The first two weeks of leave (up to
                               has a qualifying reason to take Paid                       80 hours) may be paid under the
                               Sick Leave.                                                EPSLA; the subsequent weeks are paid
                                  (c) Teleworking. If an Employer di-                     under the EFMLEA.
                               rects or allows an Employee to                                (3) An Employee’s prior use of Paid
                               Telework, or the Employee normally                         Sick Leave under EPSLA will impact
                               works from home, the Employer and                          the amount of Paid Sick Leave that re-
                               Employee may agree that the Em-                            mains available to the Employee.
                               ployee may take Paid Sick Leave for                           (4) An Eligible Employee who has ex-
                               any qualifying reason or Expanded                          hausted his or her twelve workweek
                               Family and Medical Leave intermit-                         FMLA entitlement, see § 826.70, is not

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                               § 826.70                                                               29 CFR Ch. V (7–1–20 Edition)

                               precluded from taking Paid Sick                              (3) To care for the employee’s spouse,
                               Leave.                                                     son, daughter, or parent with a serious
                                 (b) Supplementing Expanded Family                        health condition;
                               and Medical Leave with other accrued                         (4) Because of a serious health condi-
                               Employer-provided leave.                                   tion that makes the employee unable
                                 (1) Where an Eligible Employee takes                     to perform one or more of the essential
                               Expanded Family and Medical Leave                          functions of his or her job;
                               after taking all or part of his or her                       (5) Because of any qualifying exi-
                               Paid Sick Leave for a reason other                         gency arising out of the fact that the
                               than that provided in § 826.20(a)(1)(v),                   employee’s spouse, son, daughter, or
                               all or part of the Eligible Employee’s                     parent is a military member on cov-
                               first ten days (or first two weeks) of                     ered active duty status (or has been no-
                               Expanded Family and Medical Leave                          tified of an impending call or order to
                               may be unpaid because the Eligible                         covered active duty); and
                               Employee will have exhausted his or                          (6) To care for the Eligible Employ-
                               her Paid Sick Leave entitlement.                           ee’s Son or Daughter whose School or
                                 (2) Under the circumstances in (b)(1)                    Place of Care is closed, or Child Care
                               of this section, the Eligible Employee                     Provider is unavailable, due to COVID–
                               may choose to substitute earned or ac-                     19 related reasons.
                               crued paid leave provided by the Em-                         (b) If an Eligible Employee has al-
                               ployer during this period. The term                        ready taken some FMLA leave for rea-
                               substitute means that the preexisting                      sons (a)(1) through (5) during the
                               paid leave provided by the Employer,                       twelve-month period, the Eligible Em-
                               which has been earned or accrued pur-                      ployee may take up to the remaining
                               suant to established policies of the Em-                   portion of the twelve workweek leave
                               ployer, will run concurrently with the                     for Expanded Family and Medical
                               unpaid Expanded Family and Medical                         Leave. If an Eligible Employee has al-
                               Leave. Accordingly, the Eligible Em-                       ready taken the full twelve workweeks
                               ployee receives pay pursuant to the                        of FMLA leave during the twelve-
                               Employer’s preexisting paid leave pol-                     month period, the Eligible Employee
                               icy during the period of otherwise un-                     may not take Expanded Family and
                               paid Expanded Family and Medical                           Medical Leave. An Eligible Employee’s
                               Leave.                                                     entitlement to take up to two weeks of
                                 (3) If the Eligible Employee does not                    Paid Sick Leave under the EPSLA is
                               elect to substitute paid leave for un-                     not impacted by the Eligible Employ-
                               paid Expanded Family and Medical                           ee’s use of FMLA leave. For example, if
                               Leave under the above conditions and                       an Eligible Employee used his or her
                               circumstances, the Eligible Employee                       full FMLA leave entitlement for birth
                               will remain entitled to any paid leave                     and bonding with a newborn, he or she
                               that the Eligible Employee has earned                      would still be entitled to take Paid
                               or accrued under the terms of his or                       Sick Leave (for any covered reason),
                               her Employer’s plan.                                       but could not take Expanded Family
                                                                                          and Medical Leave in the same twelve-
                               § 826.70 Leave to care for a child due                     month period if his or her child’s day
                                   to School or Place of Care closure                     care closed due to COVID–19 related
                                   or child care unavailability—inter-                    reasons.
                                   section of EFMLEA and the FMLA.                          (c) If an Eligible Employee takes
                                 (a) Certain employees are entitled to                    fewer than twelve weeks of Expanded
                               a total of twelve workweeks of FMLA                        Family and Medical Leave, the Em-
                               leave in the twelve-month period de-                       ployee may take up to the remaining
                               fined in § 825.200(b) of this chapter for                  portion of the twelve weeks FMLA
                               the following reasons:                                     leave entitlement for reasons described
                                 (1) The birth of the employee’s son or                   in paragraphs (a)(1) through (5) of this
                               daughter, and to care for the newborn                      section. For example, if an Eligible
                               child;                                                     Employee takes eight weeks of Ex-
                                 (2) The placement with the employee                      panded Family and Medical Leave to
                               of a son or daughter for adoption or                       care for his or her Son or Daughter
                               foster care, and to care for the newly                     whose School is closed due to COVID–19
                               placed child;                                              related reasons, he or she could take up

                                                                                    908



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                               Wage and Hour Division, Labor                                                                        § 826.90

                               to four workweeks of unpaid FMLA                           impaired individuals must also comply
                               leave for his or her own serious health                    with all applicable requirements under
                               condition later in the twelve-month pe-                    Federal or State law.
                               riod.                                                        (d) This section does not require
                                 (d) If an employee has taken FMLA                        translation or provision of the notice
                               leave to care for a covered service                        in languages other than English.
                               member with a serious injury or ill-                         (e) For Employers who are covered by
                               ness, the remaining FMLA leave enti-                       the EFMLEA but are not covered by
                               tlement that may be used for Expanded                      the other provisions of the FMLA,
                               Family and Medical Leave is cal-                           posting of this FFCRA notice satisfies
                               culated in accordance with § 825.127(e)                    their FMLA general notice obligation.
                               of this chapter.                                           See 29 U.S.C. 2619; § 825.300 of this chap-
                                 (e) An Eligible Employee can take a                      ter.
                               maximum of twelve workweeks of Ex-
                               panded Family and Medical Leave dur-                       § 826.90 Employee notice of need for
                               ing the period in which the leave may                           leave.
                               be taken (April 1, 2020 to December 31,                       (a) Requirement to provide notice. (1)
                               2020) even if that period spans two                        An Employer may require an Employee
                               FMLA leave twelve-month periods. For                       to follow reasonable notice procedures
                               example, if an Employer’s twelve-                          after the first workday (or portion
                               month period begins on July 1, and an                      thereof) for which an Employee takes
                               Eligible Employee took seven weeks of                      Paid Sick Leave for any reason other
                               Expanded Family and Medical Leave in                       than that described in § 826.20(a)(1)(v).
                               May and June, 2020, the Eligible Em-                       Whether a procedure is reasonable will
                               ployee could only take up to five addi-                    be determined under the facts and cir-
                               tional weeks of Expanded Family and                        cumstances of each particular case.
                               Medical Leave between July 1 and De-                       Nothing in this section precludes an
                               cember 31, 2020, even though the first                     Employee from offering notice to an
                               seven weeks of Expanded Family and                         Employer sooner; the Department en-
                               Medical Leave fell in the prior twelve-                    courages, but does not require, Em-
                               month period.                                              ployees to notify Employers about
                               [85 FR 19347, Apr. 6, 2020, as amended at 85               their request for Paid Sick Leave or
                               FR 20158, Apr. 10, 2020]                                   Expanded Family and Medical Leave as
                                                                                          soon as practicable. If an Employee
                               § 826.80 Employer notice.                                  fails to give proper notice, the Em-
                                  (a) Every Employer covered by                           ployer should give him or her notice of
                               FFCRA’s paid leave provisions is re-                       the failure and an opportunity to pro-
                               quired to post and keep posted on its                      vide the required documentation prior
                               premises, in conspicuous places a no-                      to denying the request for leave.
                               tice explaining the FFCRA’s paid leave                        (2) In any case where an Employee re-
                               provisions and providing information                       quests leave in order to care for the
                               concerning the procedures for filing                       Employee’s Son or Daughter whose
                               complaints of violations of the FFCRA                      School or Place of Care is closed, or
                               with the Wage and Hour Division.                           Child Care Provider is unavailable, due
                                  (b) An Employer may satisfy this re-                    to COVID–19 related reasons, if that
                               quirement by emailing or direct mail-                      leave was foreseeable, an Employee
                               ing this notice to Employees, or post-                     shall provide the Employer with notice
                               ing this notice on an Employee infor-                      of such Paid Sick Leave or Expanded
                               mation internal or external website.                       Family and Medical Leave as soon as
                                  (c) To meet the requirements of para-                   practicable. If an Employee fails to
                               graph (a) of this section, Employers                       give proper notice, the Employer
                               may duplicate the text of the Depart-                      should give him or her notice of the
                               ment’s model notice (WHD 1422 REV 03/                      failure and an opportunity to provide
                               20) or may use another format so long                      the required documentation prior to
                               as the information provided includes,                      denying the request for leave.
                               at a minimum, all of the information                          (b) Timing and delivery of notice. No-
                               contained in that notice. Prototypes                       tice may not be required in advance,
                               are available at www.dol.gov/whd. Em-                      and may only be required after the
                               ployers furnishing notices to sensory-                     first workday (or portion thereof) for

                                                                                    909



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                               § 826.100                                                              29 CFR Ch. V (7–1–20 Edition)

                               which an Employee takes Paid Sick                          ployee to self-quarantine due to con-
                               Leave or Expanded Family and Medical                       cerns related to COVID–19.
                               Leave. After the first workday, it will                      (d) To take Paid Sick Leave for a
                               be reasonable for an Employer to re-                       qualifying COVID–19 related reason
                               quire notice as soon as practicable                        under § 826.20(a)(1)(iv) an Employee
                               under the facts and circumstances of                       must additionally provide the Em-
                               the particular case. Generally, it will                    ployer with either:
                               be reasonable for notice to be given by                      (1) The name of the government enti-
                               the Employee’s spokesperson (e.g.,                         ty that issued the Quarantine or Isola-
                               spouse, adult family member, or other                      tion Order to which the individual
                               responsible party) if the Employee is                      being care for is subject; or
                               unable to do so personally.                                  (2) The name of the health care pro-
                                 (c) Content of notice. Generally, it will                vider who advised the individual being
                               be reasonable for an Employer to re-                       cared for to self-quarantine due to con-
                               quire oral notice and sufficient infor-                    cerns related to COVID–19.
                               mation for an Employer to determine                          (e) To take Paid Sick Leave for a
                               whether the requested leave is covered                     qualifying COVID–19 related reason
                               by the EPSLA or the EFMLEA. An                             under § 826.20(a)(1)(v) or Expanded Fam-
                               Employer may not require the notice                        ily and Medical Leave, an Employee
                                                                                          must additionally provide:
                               to include documentation beyond what
                                                                                            (1) The name of the Son or Daughter
                               is allowed by § 826.100.
                                                                                          being cared for;
                                 (d) Complying with Employer policy.                        (2) The name of the School, Place of
                               Generally, it will be reasonable for the                   Care, or Child Care Provider that has
                               Employer to require the Employee to                        closed or become unavailable; and
                               comply with the Employer’s usual and                         (3) A representation that no other
                               customary notice and procedural re-                        suitable person will be caring for the
                               quirements for requesting leave, absent                    Son or Daughter during the period for
                               unusual circumstances.                                     which the Employee takes Paid Sick
                                                                                          Leave or Expanded Family and Medical
                               § 826.100 Documentation of need for
                                   leave.                                                 Leave.
                                                                                            (f) The Employer may also request an
                                 (a) An Employee is required to pro-                      Employee to provide such additional
                               vide the Employer documentation con-                       material as needed for the Employer to
                               taining the following information prior                    support a request for tax credits pursu-
                               to taking Paid Sick Leave under the                        ant to the FFCRA. The Employer is
                               EPSLA or Expanded Family and Med-                          not required to provide leave if mate-
                               ical Leave under the EFMLEA:                               rials sufficient to support the applica-
                                 (1) Employee’s name;                                     ble tax credit have not been provided.
                                 (2) Date(s) for which leave is re-                       For more information, please consult
                               quested;                                                   https://www.irs.gov/newsroom/covid-19-re-
                                 (3) Qualifying reason for the leave;                     lated-tax-credits-for-required-paid-leave-
                               and                                                        provided-by-small-and-midsize-businesses-
                                 (4) Oral or written statement that                       faqs.
                               the Employee is unable to work be-                         [85 FR 19347, Apr. 6, 2020, as amended at 85
                               cause of the qualified reason for leave.                   FR 20158, Apr. 10, 2020]
                                 (b) To take Paid Sick Leave for a
                               qualifying COVID–19 related reason                         § 826.110 Health care coverage.
                               under § 826.20(a)(1)(i), an Employee                          (a) While an Employee is taking Paid
                               must additionally provide the Em-                          Sick Leave or Expanded Family and
                               ployer with the name of the govern-                        Medical Leave, an Employer must
                               ment entity that issued the Quarantine                     maintain the Employee’s coverage
                               or Isolation Order.                                        under any group health plan (as defined
                                 (c) To take Paid Sick Leave for a                        in the Internal Revenue Code of 1986 at
                               qualifying COVID–19 related reason                         26 U.S.C. 5000(b)(1)) on the same condi-
                               under § 826.20(a)(1)(ii) an Employee                       tions as coverage would have been pro-
                               must additionally provide the Em-                          vided if the Employee had been con-
                               ployer with the name of the health                         tinuously employed during the entire
                               care provider who advised the Em-                          leave period. All Employers covered by

                                                                                    910



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                               Wage and Hour Division, Labor                                                                    § 826.120

                               the EPSLA or the EFMLEA are subject                        Paid Sick Leave or Expanded Family
                               to the requirement to maintain health                      and Medical Leave. If premiums are
                               coverage. The term ‘‘group health                          raised or lowered, the Employee would
                               plan’’ has the same meaning as under                       be required to pay the new Employee
                               the FMLA (see § 825.102 of this chapter).                  premium contribution on the same
                               Maintenance of individual health in-                       terms as other Employees. The Em-
                               surance policies purchased by an Em-                       ployee’s share of premiums must be
                               ployee from an insurance provider, as                      paid by the method normally used dur-
                               described in § 825.209(a) of this chapter,                 ing any paid leave, presumably as a
                               is the responsibility of the Employee.                     payroll deduction. If leave is unpaid, or
                                 (b) The same group health plan bene-                     the Employee’s pay during leave is in-
                               fits provided to an Employee prior to                      sufficient to cover the Employee’s
                               taking Paid Sick Leave or Expanded                         share of the premiums, the Employer
                               Family and Medical Leave must be                           may obtain payment from the Em-
                               maintained while an Employee is tak-                       ployee in accordance with § 825.210(c) of
                               ing Paid Sick Leave or Expanded Fam-                       this chapter.
                               ily and Medical Leave. For example, if                       (f) An Employee may choose not to
                               family member coverage is provided to                      retain group health plan coverage
                               an Employee, family member coverage                        while an Employee is taking Paid Sick
                               must be maintained while an Employee                       Leave or Expanded Family and Medical
                               is taking Paid Sick Leave or Expanded                      Leave. However, when an Employee re-
                               Family and Medical Leave. Similarly,                       turns from leave, the Employee is enti-
                               benefit coverage for medical care, sur-                    tled to be reinstated on the same terms
                               gical care, hospital care, dental care,                    as prior to taking the leave, including
                               eye care, mental health counseling,                        family or dependent coverages, without
                               substance abuse treatment, etc., must                      any additional qualifying period, phys-
                               be maintained while an Employee is                         ical examination, exclusion of pre-ex-
                               taking Paid Sick Leave or Expanded                         isting conditions, etc.
                               Family and Medical Leave if provided                         (g) Except as required by the Consoli-
                               in an Employer’s group health plan, in-                    dated Omnibus Budget Reconciliation
                               cluding a supplement to a group health                     Act of 1986 (COBRA), an Employer’s ob-
                               plan, whether or not provided through                      ligation to maintain health benefits
                               a flexible spending account or other                       while an Employee is taking Paid Sick
                               component of a cafeteria plan.                             Leave or Expanded Family and Medical
                                 (c) If an Employer provides a new                        Leave ceases under this section if and
                               health plan or benefits or changes                         when the employment relationship
                               health benefits or plans while an Em-                      would have terminated if the Employee
                               ployee is taking Paid Sick Leave or                        had not taken Paid Sick Leave or Ex-
                               Expanded Family and Medical Leave,                         panded Family and Medical Leave (e.g.,
                               the Employee is entitled to the new or                     if the Employee fails to return from
                               changed plan/benefits to the same ex-                      leave, or if the entitlement to leave
                               tent as if the Employee was not on                         ceases because an Employer closes its
                               leave. Any other plan changes (e.g., in                    business).
                               coverage, premiums, deductibles, etc.)
                               which apply to all Employees of the                        § 826.120 Multiemployer plans.
                               workforce would also apply to Employ-                         (a) Paid Sick Leave. In accordance
                               ees taking Paid Sick Leave or Ex-                          with its existing collective bargaining
                               panded Family and Medical Leave.                           obligations, an Employer signatory to
                                 (d) Notice of any opportunity to                         a multiemployer collective bargaining
                               change plans or benefits must also be                      agreement may satisfy its obligations
                               given to an Employee taking Paid Sick                      to provide Paid Sick Leave by making
                               Leave or Expanded Family and Medical                       contributions to a multiemployer fund,
                               Leave. If the Employee requests the                        plan, or other program. Such contribu-
                               changed coverage, the Employer must                        tions must be based on the hours of
                               provide it.                                                Paid Sick Leave to which each Em-
                                 (e) An Employee remains responsible                      ployee is entitled under the EPSLA ac-
                               for paying his or her portion of group                     cording to each Employee’s work under
                               health plan premiums which had been                        the multi-employer collective bar-
                               paid by the Employee prior to taking                       gaining agreement.

                                                                                    911



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                               § 826.130                                                              29 CFR Ch. V (7–1–20 Edition)

                                 (b) Expanded Family and Medical                          ployee regardless of whether he or she
                               Leave. In accordance with its existing                     took leave. In order to deny restora-
                               collective bargaining obligations, an                      tion to employment, an Employer must
                               Employer signatory to a multiem-                           be able to show that an Employee
                               ployer collective bargaining agreement                     would not otherwise have been em-
                               may satisfy its obligations to provide                     ployed at the time reinstatement is re-
                               Expanded Family and Medical Leave                          quested in order to deny restoration to
                               by making contributions to a multiem-                      employment.
                               ployer fund, plan, or other program.                         (2) For leave taken under the
                               Such contributions must be based on                        EFMLEA, an Employer may deny job
                               the hours of paid family and medical
                                                                                          restoration to key Eligible Employees,
                               leave to which each Eligible Employee
                                                                                          as defined under the FMLA (§ 825.217 of
                               is entitled under the EFMLEA, accord-
                               ing to each Eligible Employee’s work                       this chapter), if such denial is nec-
                               under the multiemployer collective                         essary to prevent substantial and
                               bargaining agreement.                                      grievous economic injury to the oper-
                                 (c) Employee access. Any multiem-                        ations of the Employer.
                               ployer fund, plan, or program under                          (3) An Employer who employs fewer
                               section (a) or (b) of this section must                    than twenty-five Eligible Employees
                               enable or otherwise allow Employees to                     may deny job restoration to an Eligible
                               secure payments for Paid Sick Leave                        Employee who has taken Expanded
                               or Expanded Family and Medical                             Family and Medical Leave if all four of
                               Leave. If the multiemployer fund, plan,                    the following conditions exist:
                               or program does not enable or other-                         (i) The Eligible Employee took leave
                               wise allow Employees to secure pay-                        to care for his or her Son or Daughter
                               ments for paid leave to which they are                     whose School or Place of Care was
                               entitled under the FFCRA based on                          closed, or whose Child Care Provider
                               their work under the multiemployer                         was unavailable, for COVID–19 related
                               collective bargaining agreement, the                       reasons;
                               multiemployer fund, plan, or program
                                                                                            (ii) The position held by the Eligible
                               does not satisfy the requirements of
                                                                                          Employee when the leave commenced
                               the FFCRA.
                                 (d) Alternative means of compliance. In                  does not exist due to economic condi-
                               accordance with its existing collective                    tions or other changes in operating
                               bargaining obligations, an Employer                        conditions of the Employer that affect
                               signatory to a multiemployer collec-                       employment and are caused by a Public
                               tive bargaining agreement may satisfy                      Health Emergency during the period of
                               its obligations to provide Paid Sick                       leave;
                               Leave under the EPSLA or Expanded                            (iii) The Employer makes reasonable
                               Family and Medical Leave under the                         efforts to restore the Eligible Em-
                               EFMLEA by means other than those                           ployee to a position equivalent to the
                               set forth in paragraph (a) and (b) of                      position the Eligible Employee held
                               this section, provided such means are                      when the leave commenced, with
                               consistent with its existing bargaining                    equivalent employment benefits, pay,
                               obligations and any applicable collec-                     and other terms and conditions of em-
                               tive bargaining agreement.                                 ployment; and
                                                                                            (iv) Where the reasonable efforts of
                               § 826.130 Return to work.
                                                                                          the Employer to restore the Eligible
                                  (a) General rule. On return from Paid                   Employee to an equivalent position
                               Sick Leave or Expanded Family and                          fail, the Employer makes reasonable
                               Medical Leave, an Employee has a                           efforts to contact the Eligible Em-
                               right to be restored to the same or an                     ployee during a one-year period, if an
                               equivalent position in accordance with
                                                                                          equivalent position becomes available.
                               §§ 825.214 and 825.215 of this chapter.
                                                                                          The one-year period begins on the ear-
                                  (b) Restoration limitations. Notwith-
                               standing paragraph (a) of this section:                    lier of the date the leave related to a
                                  (1) An Employee is not protected                        Public Health Emergency concludes or
                               from employment actions, such as lay-                      the date twelve weeks after the Eligi-
                               offs, that would have affected the Em-                     ble Employee’s leave began.

                                                                                    912



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                               Wage and Hour Division, Labor                                                                    § 826.151

                               § 826.140      Recordkeeping.                              § 826.150 Prohibited acts and enforce-
                                                                                               ment under the EPSLA.
                                 (a) An Employer is required to retain
                               all documentation provided pursuant                           (a) Prohibited acts. An Employer is
                               to § 826.100 for four years, regardless                    prohibited     from     discharging,    dis-
                               whether leave was granted or denied. If                    ciplining, or discriminating against
                               an Employee provided oral statements                       any Employee because such Employee
                               to support his or her request for Paid                     took Paid Sick Leave under the
                               Sick Leave or Expanded Family and                          EPSLA. Likewise, an Employer is pro-
                               Medical Leave, the Employer is re-                         hibited from discharging, disciplining,
                               quired to document and maintain such                       or discriminating against any Em-
                               information in its records for four                        ployee because such Employee has filed
                               years.                                                     any complaint or instituted or caused
                                 (b) An Employer that denies an Em-                       to be instituted any proceeding, includ-
                               ployee’s request for Paid Sick Leave or                    ing an enforcement proceeding, under
                               Expanded Family and Medical Leave                          or related to the EPSLA, or has testi-
                               pursuant to § 826.40(b) shall document                     fied or is about to testify in any such
                                                                                          proceeding.
                               the determination by its authorized of-
                                                                                             (b) Enforcement—(1) Failure to provide
                               ficer that it is eligible for such exemp-
                                                                                          Paid Sick Leave. An Employer who fails
                               tion and retain such documentation for
                                                                                          to provide its Employee Paid Sick
                               four years.
                                                                                          Leave under the EPSLA is considered
                                 (c) In order to claim tax credits from                   to have failed to pay the minimum
                               the Internal Revenue Service (IRS), an                     wage as required by section 6 of the
                               Employer is advised to maintain the                        FLSA, 29 U.S.C. 206, and shall be sub-
                               following records for four years:                          ject to the enforcement provisions set
                                 (1) Documentation to show how the                        forth in sections 16 and 17 of the FLSA,
                               Employer determined the amount of                          29 U.S.C. 216, 217.
                               paid sick leave and expanded family                           (2) Discharge, discipline, or discrimina-
                               and medical leave paid to Employees                        tion. An Employer who discharges, dis-
                               that are eligible for the credit, includ-                  ciplines, or discriminates against an
                               ing records of work, Telework and Paid                     Employee in the manner described in
                               Sick Leave and Expanded Family and                         subsection (a) is considered to have
                               Medical Leave;                                             violated section 15(a)(3) of the FLSA, 29
                                 (2) Documentation to show how the                        U.S.C. 215(a)(3), and shall be subject to
                               Employer determined the amount of                          the enforcement provisions relevant to
                               qualified health plan expenses that the                    such violations set forth in sections 16
                               Employer allocated to wages;                               and 17 of the FLSA, 29 U.S.C. 216, 217.
                                 (3) Copies of any completed IRS
                               Forms 7200 that the Employer sub-                          § 826.151 Prohibited acts and enforce-
                               mitted to the IRS;                                              ment under the EFMLEA.
                                 (4) Copies of the completed IRS                             (a) Prohibited acts. The prohibitions
                               Forms 941 that the Employer sub-                           against interference with the exercise
                               mitted to the IRS or, for Employers                        of rights, discrimination, and inter-
                               that use third party payers to meet                        ference with proceedings or inquiries
                               their employment tax obligations,                          described in the FMLA, 29 U.S.C. 2615,
                               records of information provided to the                     apply to Employers with respect to Eli-
                               third party payer regarding the Em-                        gible Employees taking, or attempting
                               ployer’s entitlement to the credit                         to take, leave under the EFMLEA.
                               claimed on IRS Form 941, and                                  (b) Enforcement. An Employer who
                                 (5) Other documents needed to sup-                       commits a prohibited act described in
                               port its request for tax credits pursu-                    paragraph (a) of this section shall be
                               ant to IRS applicable forms, instruc-                      subject to the enforcement provisions
                               tions, and information for the proce-                      set forth in section 107 of the FMLA, 29
                               dures that must be followed to claim a                     U.S.C. 2617, and § 825.400 of this chapter,
                               tax credit. For more information,                          except that an Eligible Employee may
                               please consult https://www.irs.gov/news-                   file a private action to enforce the
                               room/covid-19-related-tax-credits-for-re-                  EFMLEA only if the Employer is oth-
                               quired-paid-leave-provided-by-small-and-                   erwise subject to the FMLA in the ab-
                               midsize-businesses-faqs.                                   sence of EFMLEA.

                                                                                    913



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                               § 826.152                                                              29 CFR Ch. V (7–1–20 Edition)

                               § 826.152 Filing a complaint with the                      of Paid Sick Leave and Expanded Fam-
                                   Federal Government.                                    ily and Medical Leave. The foregoing is
                                  A complaint alleging any violation of                   subject to the exception of FMLA leave
                               the EPSLA and/or the EFMLEA may                            as provided in § 826.70. An Employer
                               be filed in person, by mail, or by tele-                   shall permit an Employee to imme-
                               phone, with the Wage and Hour Divi-                        diately use the Paid Sick Leave and
                               sion, U.S. Department of Labor, includ-                    Expanded Family and Medical Leave to
                               ing at any local office of the Wage and                    which he or she is entitled under the
                               Hour Division. No particular form of                       EPSLA and the EFMLEA. However, no
                               complaint is required, except that a                       Employer is obligated or required to
                               complaint must be in writing and                           provide, and no Employee has a right
                               should include a full statement of the                     or entitlement to receive, any retro-
                               acts and/or omissions, with pertinent                      active reimbursement or financial
                               dates, that are believed to constitute                     compensation through Paid Sick Leave
                               the violation.                                             or Expanded Family and Medical Leave
                                                                                          for any unpaid or partially paid leave
                               § 826.153 Investigative authority of the                   taken prior to April 1, 2020, even if such
                                    Secretary.                                            leave was taken for COVID–19-reated
                                  (a) Investigative authority under the                   reasons.
                               EPSLA. For purposes of the EPSLA,                            (b) Sequencing of Paid Sick Leave. (1)
                               the Secretary has the investigative au-                    An Employee may first use Paid Sick
                               thority and subpoena authority set                         Leave before using any other leave to
                               forth in sections 9 and 11 of the FLSA,                    which he or she is entitled by any:
                               29 U.S.C. 209, 211.                                          (i) Other Federal, State, or local law;
                                  (b) Investigative authority under the                     (ii) Collective bargaining agreement;
                               EFMLEA. For purposes of EFMLEA,                            or
                               the Secretary has the investigative au-                      (iii) Employer policy that existed
                               thority set forth in section 106(a) of the                 prior to April 1, 2020.
                               FMLA, 29 U.S.C. 2616(a), and the sub-
                                                                                            (2) No Employer may require, coerce,
                               poena authority set forth in section
                                                                                          or unduly influence any Employee to
                               106(d) of the FMLA, 29 U.S.C. 2616(d).
                                                                                          first use any other paid leave to which
                               § 826.160 Effect on other laws, em-                        the Employee is entitled before the
                                     ployer practices, and collective bar-                Employee uses Paid Sick Leave. Nor
                                     gaining agreements.                                  may an Employer require, coerce, or
                                  (a) No diminishment of other rights or                  unduly influence an Employee to use
                               benefits. (1) An Employee’s entitlement                    any source or type of unpaid leave
                               to, or actual use of, Paid Sick Leave                      prior to taking Paid Sick Leave.
                               under the EPSLA is in addition to—                           (c) Sequencing of Expanded Family and
                               and shall not in any way diminish, re-                     Medical Leave. (1) Consistent with sec-
                               duce, or eliminate—any other right or                      tion 102(d)(2)(B) of the FMLA, 29 U.S.C.
                               benefit, including regarding Paid Sick                     2612(d)(2)(B), an Eligible Employee may
                               Leave, to which the Employee is enti-                      elect to use, or an Employer may re-
                               tled under any of the following:                           quire that an Eligible Employee use,
                                  (i) Another Federal, State, or local                    provided or accrued leave available to
                               law, except the FMLA as provided in                        the Eligible Employee for the purpose
                               § 826.70;                                                  set forth in § 826.20(b) under the Em-
                                  (ii) A collective bargaining agree-                     ployer’s policies, such as vacation or
                               ment; or                                                   personal leave or paid time off, concur-
                                  (iii) An Employer policy that existed                   rently with Expanded Family and Med-
                               prior to April 1, 2020.                                    ical Leave.
                                  (2) That an Employee already used                         (2) If an Eligible Employee elects, or
                               any type of leave prior to April 1, 2020,                  an Employer requires, concurrent
                               for reasons related to COVID–19 or oth-                    leave, the Employer must pay the Eli-
                               erwise, shall not be grounds for his or                    gible Employee the full amount to
                               her Employer to deny him or her Paid                       which the Eligible Employee is entitled
                               Sick Leave and Expanded Family and                         under the Employer’s preexisting paid
                               Medical Leave or for the Employer to                       leave policy for the period of leave
                               delay or postpone the Employee’s use                       taken.

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                               Wage and Hour Division, Labor                                                                    § 826.160

                                 (d) No creation of requirements upon                       (f) One time use. Any person is limited
                               end of employment. An Employer has no                      to a total of 80 hours Paid Sick Leave.
                               obligation to provide—and an Em-                           An Employee who has taken all such
                               ployee or former Employee has no                           leave and then changes Employers is
                               right or entitlement to receive—finan-                     not entitled to additional Paid Sick
                               cial compensation or other reimburse-                      Leave from his or her new Employer.
                               ment for unused Paid Sick Leave or                         An Employee who has taken some, but
                               Expanded Family and Medical Leave                          fewer than 80 hours of Paid Sick Leave,
                               upon the Employee’s termination, res-                      and then changes Employers is entitled
                               ignation, retirement, or any other sep-                    only to the remaining portion of such
                                                                                          leave from his or her new Employer
                               aration from employment.
                                                                                          and only if his or her new Employer is
                                 (e) No creation of requirements upon ex-
                                                                                          covered by the Emergency Paid Sick
                               piration. An Employer has no obliga-                       Leave Act. Such an Employee’s Paid
                               tion to provide—and an Employee or                         Sick Leave would expire upon reaching
                               former Employee has no right or enti-                      80 hours of Paid Sick Leave total, re-
                               tlement to receive—financial com-                          gardless of the Employer providing it,
                               pensation or other reimbursement for                       or when the Employee reaches the
                               unused Paid Sick Leave or Expanded                         number of hours of Paid Sick Leave to
                               Family and Medical Leave upon the ex-                      which he or she is entitled based on a
                               piration of the FFCRA on December 31,                      part-time schedule with the new Em-
                               2020.                                                      ployer.




                                                                                    915



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