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.”
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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
897
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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.
899
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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,
900
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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.
901
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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.
902
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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
907
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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.
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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.
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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.
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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.
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