Paid Leave Under the Families First Coronavirus Response Act (rule, 85 FR 19326, April 6, 2020)
Summary
A Department of Labor temporary rule, published in the Federal Register on April 6, 2020 (85 FR 19326), implementing the paid leave created by the Families First Coronavirus Response Act (FFCRA), signed by President Trump on March 18, 2020. The Emergency Paid Sick Leave Act (EPSLA) entitles certain employees to up to 80 hours of paid sick leave, paid at up to $511 per day and $5,110 in the aggregate, or two-thirds of pay up to $200 per day and $2,000 in the aggregate when caring for others. The Emergency Family and Medical Leave Expansion Act (EFMLEA) requires up to twelve weeks of expanded family and medical leave, up to ten weeks of which must be paid, for child care when a school or child care provider is closed. The FFCRA covers private employers with fewer than 500 employees; small employers with fewer than 50 may qualify for an exemption.
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“Paid Leave Under the Families First Coronavirus Response Act (rule, 85 FR 19326, April 6, 2020).”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/paid-leave-under-the-families-first-coronavirus-response-act-rule-85-f-c31630be56/
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19326 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
DEPARTMENT OF LABOR O. Prohibited Acts and Enforcement experiencing a substantially similar
P. Effect of Other Laws, Employer condition, as specified by the Secretary
Wage and Hour Division Practices, and Collective Bargaining of Health and Human Services. The
Agreements
FFCRA also requires covered employers
IV. Statutory and Regulatory Requirements
29 CFR Part 826 to provide up to twelve weeks of
A. Administrative Procedure Act
RIN 1235–AA35 B. Executive Order 12866, Regulatory expanded family and medical leave, up
Planning and Review; and Executive to ten weeks of which must be paid at
Paid Leave Under the Families First Order 13563, Improved Regulation and partial pay, up to a specified cap, when
Coronavirus Response Act Regulatory Review an eligible employee is unable to work
C. Regulatory Flexibility Act because of a need to care for the
AGENCY: Wage and Hour Division, D. Unfunded Mandates Reform Act of 1995 employee’s son or daughter whose
Department of Labor. E. Executive Order 13132 (Federalism) school or place of care is closed, or
ACTION: Temporary rule. F. Indian Tribal Governments whose child care provider is
G. Paperwork Reduction Act
unavailable, due to COVID–19 related
SUMMARY: The Secretary of Labor
I. Executive Summary reasons.
(‘‘Secretary’’) is promulgating temporary The FFCRA covers private employers
regulations to implement public health On March 18, 2020, President Trump
with fewer than 500 employees and
emergency leave under Title I of the signed into law the FFCRA, which
certain public employers. Small
Family and Medical Leave Act (FMLA), creates two new emergency paid leave
employers with fewer than 50
and emergency paid sick leave to assist requirements in response to the COVID–
employees may qualify for an
working families facing public health 19 global pandemic. Division E of the exemption from the requirement to
emergencies arising out of Coronavirus FFCRA, ‘‘The Emergency Paid Sick provide paid leave due to school, place
Disease 2019 (COVID–19) global Leave Act’’ (EPSLA), entitles certain of care, or child care provider closings
pandemic. The leave is created by a employees to take up to two weeks of or unavailability, if the leave payments
time-limited statutory authority paid sick leave. Division C of the would jeopardize the viability of their
established under the Families First FFCRA, ‘‘The Emergency Family and business as a going concern.
Coronavirus Response Act, Public Law Medical Leave Expansion Act’’ Under the FFCRA, covered private
116–127 (FFCRA), and is set to expire (EFMLEA), which amends Title I of the employers qualify for reimbursement
on December 31, 2020. The FFCRA and Family and Medical Leave Act, 29 through refundable tax credits as
this temporary rule do not affect the U.S.C. 2601 et seq. (FMLA), permits administered by the Department of the
FMLA after December 31, 2020. certain employees to take up to twelve Treasury, for all qualifying paid sick
DATES: This rule is effective from April weeks of expanded family and medical leave wages and qualifying family and
2, 2020, through December 31, 2020. leave, ten of which are paid, for medical leave wages paid to an
This rule became operational on April 1, specified reasons related to COVID–19. employee who takes leave under the
2020. On March 27, 2020, President Trump FFCRA, up to per diem and aggregate
FOR FURTHER INFORMATION CONTACT: signed into law the Coronavirus Aid, caps, and for allocable costs related to
Amy DeBisschop, Director, Division of Relief, and Economic Security Act, the maintenance of health care coverage
Regulations, Legislation, and Public Law 116–136 (CARES Act), under any group health plan while the
Interpretation, Wage and Hour Division, which amends certain provisions of the employee is on the leave provided
U.S. Department of Labor, Room S– EPSLA and the provisions of the FMLA under the FFCRA. For information on
3502, 200 Constitution Avenue NW, added by the EFMLEA. the tax credits, see https://www.irs.gov/
Washington, DC 20210, telephone: (202) In general, the FFCRA requires forms-pubs/about-form-7200 see also
693–0406 (this is not a toll-free covered employers to provide eligible https://www.irs.gov/pub/irs-drop/n-20-
number). employees up to two weeks of paid sick 21.pdf. For more information on the
leave at full pay, up to a specified cap, COVID–19 related small business loans,
SUPPLEMENTARY INFORMATION: when the employee is unable to work
I. Executive Summary
see https://www.sba.gov/page/
because the employee is subject to a coronavirus-covid-19-small-business-
II. Background
A. Emergency Paid Sick Leave Act (EPSLA)
Federal, State, or local quarantine or guidance-loan-resources.
B. Emergency Family and Medical Leave isolation order related to COVID–19, has The CARES Act amended the FFCRA
Expansion Act (EFMLEA) been advised by a health care provider by providing certain technical
III. Discussion to self-quarantine due to concerns corrections, as well as clarifying the
A. General related to COVID–19, or is experiencing caps for payment of leave; expanded
B. Paid Leave Entitlements COVID–19 symptoms and seeking a family and medical leave to certain
C. Employee Eligibility medical diagnosis. The FFCRA also employees who were laid off or
D. Employer Coverage provides up to two weeks of paid sick terminated after March 1, 2020, but are
E. Intermittent Leave
F. Leave To Care for a Child Due to School
leave at partial pay, up to a specified reemployed by the same employer prior
or Place of Care Closure or Child Care cap, when an employee is unable to to December 31, 2020; and provided
Unavailability—Interaction Between the work because of a need to care for an authority to the Director of the Office of
EPSLA and the EFMLEA individual subject to a Federal, State, or Management and Budget (OMB) to
G. Leave To Care for a Child Due to School local quarantine or isolation order exclude certain Federal employees from
or Place of Care Closure or Child Care related to COVID–19 or who has been paid sick leave and expanded family
Unavailability—Interaction Between the advised by a health care provider to self- and medical leave.
EFMLEA and the FMLA quarantine due to concerns related to The FFCRA grants authority to the
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H. Employer Notice Secretary to issue regulations for certain
COVID–19; because of a need to care for
I. Employee Notice of Need for Leave
J. Documentation of Need for Leave the employee’s son or daughter whose purposes. In particular, sections
K. Health Care Coverage school or place of care is closed, or 3102(b), as amended by section 3611(7)
L. Multiemployer Plans whose child care provider is of the CARES Act, and 5111(3) of the
M. Return to Work unavailable, due to COVID–19 related FFCRA grant the Secretary authority to
N. Recordkeeping reasons; or because the employee is issue regulations ‘‘as necessary, to carry
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19327
out the purposes of this Act, including taking paid sick leave; similarly, the described in sections 216 and 217 of the
to ensure consistency’’ between the Secretary has the authority to exclude FLSA. 29 U.S.C. 215(a)(3), 216, 217. The
EPSLA and the EFMLEA. The by rulemaking ‘‘certain health care EPSLA also authorizes the Secretary to
Department is issuing this temporary providers and emergency responders’’ investigate and gather data to ensure
rule to carry out the purposes of the from the requirements of the EPSLA. compliance with the EPSLA in the same
FFCRA. These new paid sick leave and FFCRA sections 5102(a), 5102(e)(1), manner as authorized by sections 9 and
expanded family and medical leave 5111(1). The CARES Act also added 11 of the FLSA, and the CARES Act
requirements became operational on certain exemptions that may apply to section 3611(9) (adding FFCRA section
April 1, 2020, effective on April 2, 2020, Federal employers and employees, 5105(c)); 29 U.S.C. 209, 211.
and will expire on December 31, 2020. which are discussed below. The EPSLA requires employers to
Pursuant to the Congressional Review The EPSLA entitles full-time covered post a notice of employees’ rights under
Act (5 U.S.C. 801 et seq.), the Office of employees to up to 80 hours of paid sick the EPSLA. It permits, but does not
Information and Regulatory Affairs leave, and generally entitles part-time require, employers who are signatories
(OIRA) designated this rule as a ‘‘major employees to up to the number of hours to multiemployer collective bargaining
rule’’, as defined by 5 U.S.C. 804(2). that they work on average over a two- agreements to fulfill their obligations
week period, although special rules may under the EPSLA by making
II. Background apply to part-time employees with contributions to a multiemployer fund,
A. Emergency Paid Sick Leave Act varying schedules. For an employee plan, or program, subject to certain
(EPSLA) who takes paid sick leave because he or requirements. Nothing in the EPSLA
she is subject to a quarantine or diminishes the rights or benefits that an
The EPSLA requires employers to
isolation order, has been advised to self- employee is entitled to under any other
provide paid sick leave to employees
quarantine by a health care provider, or Federal, State, or local law; collective
who are unable to work for six reasons is experiencing symptoms of COVID–19 bargaining agreement; or existing
having to do with COVID–19 where the and is seeking a medical diagnosis, the employer policy. Moreover, the EPSLA
employee (1) is subject to a Federal, EPSLA provides for paid sick leave at does not require financial or other
State, or local quarantine or isolation the greater of the employee’s regular rate reimbursement by an employer to an
order related to COVID–19; (2) has been of pay under section 7(e) of the Fair employee for unused paid sick leave
advised by a health care provider to self- Labor Standards Act of 1938, as upon the employee’s separation from
quarantine due to concerns related to amended, 29 U.S.C. 201 et seq. (FLSA) employment.
COVID–19; (3) is experiencing (29 U.S.C. 207(e)), or the applicable
symptoms of COVID–19 and is seeking B. Emergency Family and Medical Leave
minimum wage (federal, state, or local),
a medical diagnosis; (4) is caring for an Expansion Act (EFMLEA)
up to $511 per day and $5,110 in the
individual who is subject to an order as aggregate. An employee who takes paid The EFMLEA requires employers to
described in (1), or who has been sick leave for any other qualifying provide expanded paid family and
advised as described in (2); (5) is caring reason under the EPSLA is entitled to be medical leave to eligible employees who
for his or her son or daughter whose paid two-thirds of that amount, up to are unable to work because the
school or place of care has been closed $200 per day and $2,000 in the employee is caring for his or her son or
or whose child care provider is aggregate. An employer may not require daughter whose school or place of care
unavailable due to COVID–19 related an employee to use other paid leave is closed or whose child care provider
reasons; or (6) is experiencing any other provided by the employer before the is unavailable due to a public health
substantially similar condition specified employee uses the paid sick leave, nor emergency, defined as an emergency
by the Secretary of Health and Human may an employer require the employee with respect to COVID–19, declared by
Services in consultation with the involved to search for or find a a Federal, State, or local authority.
Secretary of the Treasury and the replacement employee to cover the The EFMLEA applies to different sets
Secretary of Labor. hours during which the employee is of employers and employees from the
Private employers with fewer than using paid sick leave. other provisions of the FMLA. Private
500 employees, as well as public The EPSLA also provides that employers with fewer than 500
agencies with one or more employees, employers who fail to provide paid sick employees must comply with the
must comply with the EPSLA, although leave as required are considered to have EFMLEA, although the Secretary has the
the Secretary has authority to exempt by failed to pay minimum wages in authority to exempt by rulemaking
rulemaking certain employers with violation of section 6 of the FLSA, and employers with fewer than 50
fewer than 50 employees from providing that such employers are subject to employees from EFMLEA’s
paid sick leave to an employee who is enforcement proceedings described in requirements when compliance with the
unable to work because the employee is sections 16 and 17 of the FLSA. 29 EFMLEA would ‘‘jeopardize the
caring for his or her son or daughter U.S.C. 206, 216, 217. In addition, the viability of the business as a going
whose school or place of care has been EPSLA prohibits employers from concern.’’ FFCRA section 3102(b)
closed or whose child care provider is discharging, disciplining, or in any (adding FMLA section 110(a)(1)(B),
unavailable due to COVID–19 related other manner discriminating against an (3)(B)). Generally, public agencies as
reasons when compliance with this employee who takes paid sick leave defined at § 826.10(a) must comply with
requirement would ‘‘jeopardize the under the EPSLA, files any complaint the EFMLEA. As it relates to the Federal
viability of the business as a going under or relating to the EPSLA, government, however, only those
concern.’’ FFCRA sections institutes any proceeding under or Federal employees covered by Title I of
5100(2)(B)(i)–(ii), 5111(2). The EPSLA relating to the EPSLA, or testifies in any the FMLA are potentially eligible under
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applies to employees of covered such proceeding. See FFCRA section the EFMLEA. 29 U.S.C. 2611(2)(B)(i).
employers regardless of how long an 5104, as amended by CARES Act section The EFMLEA applies to employees of
employee has worked for an employer, 3611(8). Employers who violate this covered employers if such employees
except that employers may exclude prohibition are considered to have have been employed by the employer
employees who are health care violated section 15(a)(3) of the FLSA, for at least 30 calendar days. This
providers or emergency responders from and are subject to the penalties includes employees who were laid off or
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19328 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
otherwise terminated on or after March provisions, 29 U.S.C. 2617, apply for when an employee may take leave to
1, 2020, had worked for the employer purposes of the EFMLEA, except that an care for his or her son or daughter
for at least thirty of the prior 60 calendar employee’s right to file a lawsuit whose school or place of care is closed
days, and were subsequently rehired or directly against an employer does not or child care provider is unavailable due
otherwise reemployed by the same extend to employers who were not to COVID–19 related reasons. The
employer. CARES Act section 3605 previously covered by the FMLA. Department is therefore treating the
(amending FMLA section 110(a)(1)(A)). The EFMLEA permits, but does not definitions as the same (i.e., to include
As with the EPSLA, employers may, require, employers who are signatories children under 18 years of age and
however, exclude employees who are to multiemployer collective bargaining children age 18 or older who are
health care providers or emergency agreements to fulfill their obligations incapable of self-care because of a
responders from taking expanded family under the EFMLEA by making mental or physical disability), pursuant
and medical leave, and similarly, the contributions to a multiemployer fund, to its statutory authority to issue
Secretary has the authority to exclude plan, or program, subject to certain regulations to ensure consistency
by rulemaking ‘‘certain health care requirements. between the EPSLA and the EFMLEA.
providers and emergency responders’’ Only one other definition in the
III. Discussion
from the requirements of the EFMLEA. FFCRA—‘‘telework’’—bears further
An employee is entitled to take up to The paid leave requirements of the discussion here. Section 826.10 defines
twelve weeks of leave for the purpose EPSLA and the EFMLEA are described the word broadly to effectuate the
described in the EFMLEA. 29 U.S.C. and interpreted by the Secretary in statute’s underlying purposes and also
2611(a)(1). The first two weeks (usually regulations to appear in new Part 826 of outlines when an employee is able to
ten workdays) of this leave are unpaid, Title 29 of the Code of Federal telework. The definition also clarifies
though an employee may substitute paid Regulations, and addressed below. that telework is no less work than if it
sick leave under the EPSLA or paid A. General were performed at an employer’s
leave under the employer’s preexisting worksite. As a result, employees who
policies for these two weeks of unpaid Section 826.10 contains definitions of are teleworking for COVID–19 related
leave. Unlike FMLA leave taken for terms used in the EPSLA and the reasons must always record—and be
other reasons, the following period of EFMLEA as well as in this rule. As a compensated for—all hours actually
up to ten weeks of expanded family and general matter, the FMLA definitions worked, including overtime, in
medical leave must be paid. apply to the EFMLEA unless specific accordance with the requirements of the
Specifically, after the first two weeks of definitions were included in the FLSA. See 29 CFR 785.11–13; 785.48;
leave, expanded family and medical EFMLEA. The majority of the terms see also 29 U.S.C. 206, 207; 29 CFR part
leave under the FFCRA must be paid at found in the EPSLA and the EFMLEA 778. However, an employer is not
two-thirds the employee’s regular rate of are based on terms that are defined in required to compensate employees for
pay. For each day of leave, the employee other statutes and/or their implementing unreported hours worked while
receives compensation based on the regulations, such as the FLSA. For teleworking for COVID–19 related
number of hours he or she would example, the EPSLA expressly adopts reasons, unless the employer knew or
otherwise be normally scheduled to the definition of ‘‘person’’ from the should have known about such
work, although special rules may apply FLSA and the definition of ‘‘son or telework. See, e.g., Allen v. City of
to employees with varying schedules. daughter’’ from the FMLA. Chicago, 865 F.3d 936 (7th Cir. 2017),
An eligible employee may elect to use, The EFMLEA defines ‘‘qualifying cert. denied, 138 S. Ct. 1302, 200 L. Ed.
or an employer may require that an need related to a public health 2d 474 (2018). While the Department’s
employee use, such expanded family emergency’’ as a need for leave ‘‘to care regulations and interpretations of the
and medical leave concurrently with for the son or daughter under 18 years FLSA generally apply to employees who
any leave offered under the employer’s of age of such employee if the school or are teleworking for COVID–19 related
policies that would be available for the place of care has been closed, or the reasons, the Department has concluded
employee to take to care for his or her child care provider of such son or that § 790.6 and its continuous workday
child, such as vacation or personal leave daughter is unavailable, due to a public guidance are inconsistent with the
or paid time off. The total EFMLEA health emergency.’’ FFCRA section objectives of the FFCRA and CARES Act
payment per employee for this ten-week 3102(b) (adding FMLA section only with respect to such employees.
period is capped at $200 per day and 110(a)(1)(A)). This definition could be The FFCRA and these regulations
$10,000 in the aggregate, for a total of read to narrow the FMLA definition of encourage employers and employees to
no more than $12,000 when combined ‘‘son or daughter’’ for purposes of implement highly flexible telework
with two weeks of paid leave taken expanded family and medical leave, as arrangements that allow employees to
under the EPSLA. the FMLA expressly includes children perform work, potentially at
The EFMLEA provides that if the 18 years of age or older and incapable unconventional times, while tending to
need for expanded family and medical of self-care because of a mental or family and other responsibilities, such
leave is foreseeable, employees shall physical disability. 29 U.S.C. 2611(12). as teaching children whose schools are
provide employers with notice of the The EFMLEA does not contain a closed for COVID–19 related reasons.
leave as soon as practicable. The definition of ‘‘son or daughter,’’ But section 790.6 and the Department’s
EFMLEA defines conditions under however, and therefore the FMLA continuous workday guidance generally
which employees who take leave are definition of that term applies to provide that all time between
entitled to be restored to their positions, expanded family and medical leave. The performance of the first and last
while exempting employers with fewer EPSLA also adopts the FMLA definition principal activities is compensable work
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than twenty-five employees from this of ‘‘son or daughter.’’ As addressed time. See 29 CFR 790.6(a). Applying this
requirement under certain more fully below in the discussion of guidance to employers with employees
circumstances. The FMLA’s general § 826.20, the Department believes it who are teleworking for COVID–19
prohibitions on interference with rights would create needless confusion and related reasons would disincentivize
and discrimination, 29 U.S.C. 2615, as complication to have different rules and undermine the very flexibility in
well as the FMLA’s enforcement under the EFMLEA and the EPSLA for teleworking arrangements that are
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19329
critical to the FFCRA framework employee would be unable to work even advice to self-quarantine must be based
Congress created within the broader if he or she were not required to comply on the health care provider’s belief that
national response to COVID–19. As a with the quarantine or isolation order. the employee has COVID–19, may have
result, the Department has determined For example, if a coffee shop closes COVID–19, or is particularly vulnerable
that an employer allowing such temporarily or indefinitely due to a to COVID–19. And, self-quarantining
flexibility during the COVID–19 downturn in business related to COVID– must prevent the employee from
pandemic shall not be required to count 19, it would no longer have any work working. An employee who is self-
as hours worked all time between the for its employees. A cashier previously quarantining is able to telework, and
first and last principal activity employed at the coffee shop who is therefore may not take paid sick leave
performed by an employee teleworking subject to a stay-at-home order would for this reason, if (a) his or her employer
for COVID–19 related reasons as hours not be able to work even if he were not has work for the employee to perform;
worked. For example, an employee may required to stay at home. As such, he (b) the employer permits the employee
agree with an employer to perform may not take paid sick leave because his to perform that work from the location
telework for COVID–19 related reasons inability to work is not due to his need where the employee is self-
on the following schedule: 7–9 a.m., to comply with the stay-at-home order, quarantining; and (c) there are no
12:30–3 p.m., and 7–9 p.m. on but rather due to the closure of his place extenuating circumstances, such as
weekdays. This allows an employee, for of employment.1 That said, he may be serious COVID–19 symptoms, that
example, to help teach children whose eligible for state unemployment prevent the employee from performing
school is closed or assist the employee’s insurance and should contact his State that work. For instance, if the lawyer in
parents who are temporarily living with workforce agency or State the above example would be able to
the family, reserving work times when unemployment insurance office for work while self-quarantining at home,
there are fewer distractions. Of course, specific questions about his eligibility. she may not take paid sick leave due to
the employer must compensate the Additionally, § 826.20(a)(2) explains a need to self-quarantine.
employee for all hours actually that an employee subject to a quarantine
The third reason for paid sick leave
worked—7.5 hours—that day, but not or isolation order is able to telework,
applies where an employee is
all 14 hours between the employee’s and therefore may not take paid sick
experiencing symptoms of COVID–19
first principal activity at 7 a.m. and last leave, if (a) his or her employer has
and seeking a medical diagnosis.
at 9 p.m. Section 790.6 and the work for the employee to perform; (b)
Section 826.20(a)(4) explains that
Department’s guidance regarding the the employer permits the employee to
perform that work from the location symptoms that could trigger this are:
continuous workday continue to apply
where the employee is being Fever, dry cough, shortness of breath, or
to all employees who are not
quarantined or isolated; and (c) there are other COVID–19 symptoms identified
teleworking for COVID–19 related
no extenuating circumstances that by the U.S. Centers for Disease Control
reasons.
prevent the employee from performing and Prevention (CDC). Additionally,
B. Paid Leave Entitlements that work. For example, if a law firm paid sick leave taken for this reason
Section 826.20 of Title 29 of the Code permits its lawyers to work from home, must be limited to the time the
of Federal Regulations describes the a lawyer would not be prevented from employee is unable to work because he
circumstances under which a covered working by a stay-at-home order, and or she is taking affirmative steps to
employer must provide paid sick leave thus may not take paid sick leave as a obtain a medical diagnosis. Thus, an
and/or expanded family and medical result of being subject to that order. In employee experiencing COVID–19
leave to an eligible employee. this circumstance, the lawyer is able to symptoms may take paid sick leave, for
Section 826.20(a) explains that an telework even if she is required to use instance, for time spent making, waiting
employee may take paid sick leave if the her own computer instead of her for, or attending an appointment for a
employee is unable to work because of employer’s computer. But, she would test for COVID–19. But, the employee
any one of six qualifying reasons related not be able to telework in the event of may not take paid sick leave to self-
to COVID–19. The first reason for paid a power outage or similar extenuating quarantine without seeking a medical
sick leave applies where an employee is circumstance and would therefore be diagnosis. An employee who is waiting
unable to work because he or she is eligible for paid sick leave during the for the results of a test is able to
subject to a Federal, State, or local period of the power outage or telework, and therefore may not take
COVID–19 quarantine or isolation order. extenuating circumstance due to the paid sick leave, if: (a) His or her
Quarantine or isolation orders include a quarantine or isolation order. employer has work for the employee to
broad range of governmental orders, The second reason for paid sick leave perform; (b) the employer permits the
including orders that advise some or all applies where an employee is unable to employee to perform that work from the
citizens to shelter in place, stay at home, work because he or she has been location where the employee is waiting;
quarantine, or otherwise restrict their advised by a health care provider, as and (c) there are no extenuating
own mobility. Section 826.20(a)(2) defined in 29 CFR 825.102, to self- circumstances, such as serious COVID–
explains that an employee may take quarantine for a COVID–19 reason. 19 symptoms, that may prevent the
paid sick leave only if being subject to Section 826.20(a)(3) explains that the employee from performing that work.
one of these orders prevents him or her An employee may continue to take leave
from working or teleworking as 1 This analysis holds even if the closure of the while experiencing any of the symptoms
described therein. The question is coffee shop was substantially caused by a stay-at- specified at § 826.20(a)(4), however; or
whether the employee would be able to home order. If the coffee shop closed due to its may continue to take leave after testing
customers being required to stay at home, the
work or telework ‘‘but for’’ being reason for the cashier being unable to work would
positive for COVID–19, regardless of
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required to comply with a quarantine or be because those customers were subject to the stay- symptoms experienced, provided that
isolation order. at-home order, not because the cashier himself was the health care provider advises the
An employee subject to one of these subject to the order. Similarly, if the order forced employee to self-quarantine. In
the coffee shop to close, the reason for the cashier
orders may not take paid sick leave being unable to work would be because the coffee
addition, an employee who is unable to
where the employer does not have work shop was subject to the order, not because the telework may continue to take paid sick
for the employee. This is because the cashier himself was subject to the order. leave under this reason while awaiting
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19330 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
a test result, regardless of the severity of parent, co-guardian, or the usual child of the employee if: (a) The school or
the COVID–19 symptoms that he or she care provider—is available to provide place of care of the son or daughter has
might be experiencing. In the case of an the care the employee’s child needs. been closed; or (b) the child care
employee who exhibits COVID–19 The sixth reason for paid sick leave provider of such son or daughter is
symptoms and seeks medical advice but applies if the employee is unable to unavailable, due to COVID–19 related
is told that he or she does not meet the work because the employee is reasons.
criteria for testing and is advised to self- experiencing any other substantially The Department considered
quarantine, he or she is eligible for leave similar condition specified by the interpreting the leave provision of the
under the second reason, provided he or Secretary of Health and Human Services EFMLEA to apply only when an
she meets all the requirements spelled in consultation with the Secretary of the employee is unable to work because of
out above. Treasury and the Secretary of Labor. a need to care for a child under age 18
The fourth reason for paid sick leave Section 826.20(b) explains that an years of age, and not to apply when a
applies where an employee is unable to employee may take expanded family child is 18 years of age or older and
work because he or she needs to care for and medical leave if the employee is incapable of self-care because of a
an individual who is either: (a) Subject unable to work due to a need for leave mental or physical disability. The
to a Federal, State, or local quarantine to care for his or her son or daughter if Department also recognizes there could
or isolation order; or (b) has been the child’s school or place of care is be other interpretations of the ‘‘under 18
advised by a health care provider to self- closed, or the child care provider of years of age’’ phrase within the
quarantine due to concerns related to such son or daughter is unavailable, for EFMLEA. However, the Department has
COVID–19. This qualifying reason reasons related to COVID–19. The decided not to employ these alternative
applies only if but for a need to care for EFMLEA provides that this reason for interpretations because it sees
an individual, the employee would be leave is for closures or unavailability significant disadvantages to having
able to perform work for his or her ‘‘due to a public health emergency,’’ different rules under the EFMLEA and
employer. Accordingly, an employee which the statute defines as ‘‘an the EPSLA for when an employee may
caring for an individual may not take emergency with respect to COVID–19 take leave to care for his or her son or
paid sick leave if the employer does not declared by a Federal, State, or local daughter. Having different rules would
have work for him or her. Furthermore, authority.’’ FFCRA section 3102(b) introduce unnecessary complexity and
if the employee must have a genuine (adding FMLA section 110(a)(2)(A), (B)). incongruity into the leave provisions
need to care for the individual. In keeping with the Department’s and could improperly deny leave to
Accordingly, § 826.20(a)(5) explains that statutory authority to issue regulations employees with a need to care for a
paid sick leave may not be taken to care to ensure consistency between the child age 18 or older who is incapable
for someone with whom the employee EPSLA and the EFMLEA, the regulatory of caring for himself or herself because
has no personal relationship. Rather, the text uses ‘‘for reasons related to COVID– of a mental or physical disability. The
individual being cared for must be an 19’’ to match the regulatory text related Department is therefore treating the
immediate family member, roommate, to the same reason for taking paid sick definitions as the same pursuant to its
or a similar person with whom the leave. In other words, the leave authority under section 5111 of the
employee has a relationship that creates authorized by the EFMLEA is the same EPSLA and section 110(a) of the FMLA,
an expectation that the employee would as the fifth reason discussed above as amended by the EFMLEA, and the
care for the person if he or she self- authorized by the EPSLA, i.e., leave CARES Act, and will issue regulations
quarantined or was quarantined. required when an employee is unable to to ensure consistency between the
Additionally, the individual being cared work because of a need to care for his EPSLA and the EFMLEA.
for must: (a) Be subject to a Federal, or her son or daughter if the school or The Department intends that
State, or local quarantine or isolation place of care of the son or daughter is providing maximum flexibility to
order as described above; or (b) have closed, or the child care provider of the employers and employees during the
been advised by a health care provider son or daughter is unavailable, due to public health emergency should not
to self-quarantine based on a belief that COVID–19 related reasons. impact the underlying relationships
he or she has COVID–19, may have The Department recognizes that between an employer and an employee.
COVID–19, or is particularly vulnerable section 3102 of the EFMLEA defines More specifically, nothing in this Act
to COVID–19. ‘‘qualifying need related to a public should be construed as impacting an
The fifth reason for paid sick leave health emergency’’ as a need for leave employee’s exempt status under the
applies when the employee is unable to ‘‘to care for the son or daughter under FLSA. For example, an employee’s use
work because the employee needs to 18 years of age of such employee if the of intermittent leave combined with
care for his or her son or daughter if: (a) school or place of care has been closed, either paid sick leave or expanded
The child’s school or place of care has or the child care provider of such son family and medical leave should not be
closed; or (b) the child care provider is or daughter is unavailable, due to a construed as undermining the
unavailable, due to COVID–19 related public health emergency.’’ FFCRA employee’s salary basis for purposes of
reasons. Again, the employee must be section 3102(b) (adding FMLA section 29 U.S.C. 213 and 29 CFR part 541.
able to perform work for his or her 110(a)(2)(A), (B)). This definition can be Section 826.21 explains how much
employer but for the need to care for his read to narrow the FMLA definition of paid sick leave an employee is entitled
or her son or daughter, which means an son or daughter, which includes to under the EPSLA. Under section
employee may not take paid sick leave children under 18 years of age or 18 5102(b)(2) of the EPSLA, a full-time
if the employer does not have work for years of age or older and incapable of employee is entitled to 80 hours of paid
him or her. Moreover, an employee may self-care because of a mental or physical sick leave, and a part-time employee is
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take paid sick leave to care for his or her disability. 29 U.S.C. 2611(12). Section entitled to the ‘‘number of hours that
child only when the employee needs to, 5110(4) of the EPSLA states that the such employee works, on average, over
and actually is, caring for his or her FMLA definition of son or daughter a 2-week period.’’ Section 5110(5)(C)(i)
child. Generally, an employee does not applies when, among other things, the further provides that if the part-time
need to take such leave if another employee is unable to work because the employee’s ‘‘schedule varies from week
suitable individual—such as a co- employee is caring for a son or daughter to week . . . the average number of
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19331
hours that the employee was scheduled workweeks, or at least 40 hours each period’’ under section 5102(b)(2)(B) to
per day over the 6-month period ending workweek. As a result, the Department determine the amount of paid sick leave
on the date on which the employee defines a full-time employee as an to which an employee is entitled. Again,
takes the paid sick time’’ shall be used employee who is normally scheduled to the Department does not believe that in
in place of the ‘‘number of hours that work at least 40 hours each workweek the EPSLA Congress intended for ‘‘the
such employee works, on average, over in § 826.21(a)(2). Further, § 826.21(a)(3) reasonable expectation . . . of the
a 2-week period’’ under section provides that an employee who does not average number of hours per day’’ to be
5102(b)(2)(B) to determine the number have a normal weekly schedule may used ‘‘in place of’’ the average number
of paid sick leave hours. also be a full-time employee if he or she of hours worked ‘‘over a 2-week
The Department does not believe the is scheduled to work, on average, at period.’’ Rather, Congress intended to
EPSLA intended to replace the average least 40 hours each workweek. For use the expected daily average number
number of hours worked ‘‘over a 2-week consistency purposes, this weekly of hours to estimate the two-week
period’’ with the average number of average should be computed over the average. The Department further
hours scheduled ‘‘per day’’ as the same six-month period as the ‘‘Varying believes such ‘‘reasonable expectation’’
number of paid sick leave hours because Schedule Hours Calculation’’ for certain is best evidenced by an agreement
such replacement would create a part-time employees under section between the employer and employee at
contradiction within the statute and 5110(5)(C)(i) of the FFCRA. Thus, the time of hiring.
lead to an absurd outcome. Setting § 826.21(a)(3) provides that the average Thus, § 826.21(b)(3) states that a part-
hours of paid sick leave ‘‘equal to the hours per workweek for an employee time employee with a varying schedule
average number of hours that the who does not have a normal weekly who has been employed for fewer than
employee was scheduled per day,’’ as schedule should be calculated over the six months is entitled to fourteen times
section 5110(5)(C)(i) requires, would six-months prior to the date on which the expected number of hours the
violate the requirement under section leave is requested to determine if he or employee and employer agreed at the
5102(b)(2)(B) that ‘‘hours of paid sick she is a full-time employee. If the time of hiring that the employee would
time to which an employee is entitled employee has been employed for less work, on average, each calendar day.
shall be . . . equal to the number of than six months, the average hours per This is equal to twice the average
hours that such employee works, on workweek is computed over the entire number of hours that the employee
average, over a 2-week period’’ for the period of employment. would be expected to work each
obvious reason that a day is different Under § 826.21(b), a part-time workweek. The agreement could have
from a two-week period. And the employee is an employee who is used any time period—e.g., each
number of hours an employee typically normally scheduled to work fewer than workweek, month, or year—to express
works in a day is an order of magnitude 40 hours each workweek or—if the the average number of hours the
lower than the number of hours that an employee lacks a normal weekly employee was expected to work, so long
employee typically works in a two-week schedule—who is scheduled to work, on as that daily average could be
period. Thus, an employee who works average, fewer than 40 hours each extrapolated. In the absence of such an
a varied schedule would be entitled to workweek. Under § 826.21(b)(1), a part- agreement, the Department believes that
an order of magnitude fewer hours of time employee who works a normal the actual average number of hours the
paid sick leave than if the employee had schedule is entitled to paid sick leave employee was scheduled to work each
worked a regular schedule. In light of equal to the number of hours he or she workday demonstrates ‘‘the reasonable
the FFCRA, the Department can think of is normally scheduled to work over a expectation . . . of the average number
no reason why Congress would penalize two-workweek period. As discussed of hours per day that the employee
part-time employees who work varied as above, the Department believes that a would normally be scheduled to work.’’
opposed to regular schedules. part-time employee whose weekly work FFCRA section 5110(5)(C)(ii).
Rather, the Department believes schedule varies should be entitled to Accordingly, § 826.21(b)(3) further
Congress intended to use the daily paid sick leave equal to fourteen times states that, in the absence of an
average to compute the two-week the average number of hours that the agreement regarding the expected
average. Because there are fourteen employee was scheduled to work per number of hours worked each day, a
calendar days over a two-week period, calendar day over the six-month period part-time employee with a varying
the Department believes Congress ending on the date on which the schedule who has been employed for
intended for the EPSLA to provide part- employee takes paid sick leave, fewer than six months ‘‘is entitled to up
time employees whose weekly schedule including hours for which the employee to the number of hours of paid sick
varies with paid sick leave equal to took leave of any type. This leave equal to fourteen times the average
fourteen times the ‘‘number of hours computation is possible only if the number of hours per calendar day that
that the employee was scheduled per employee has been employed for at least the employee was scheduled to work
[calendar] day,’’ averaged over the six months. Thus, § 826.21(b)(2) over the entire period of employment,
above-mentioned six-month period. An provides variable-schedule part-time including hours for which the employee
employer may also use twice the employees with such an amount of paid took leave of any type.’’ An employer
number of hours that an employee was sick leave. may also use twice the number of hours
scheduled to work per workweek, Section 5110(5)(C)(ii) of the EPSLA that an employee was scheduled to
averaged over the six-month period. further provides that, if a part-time work per workweek, on average, over
The EPSLA does not define what it employee with a varying weekly the six-month period.
means to be a ‘‘full-time’’ or ‘‘part-time’’ schedule has been employed for fewer Section 826.22 explains the amount of
employee. Because paid sick leave is than six months, ‘‘the reasonable pay due to employees who take paid
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designed to provide leave ‘‘over a 2- expectation of the employee at the time sick leave. If the employee takes paid
week period,’’ and the EPSLA provides of hiring of the average number of hours sick leave because he or she is subject
up to 80 hours of such leave to full-time per day that the employee would to a Federal, State, or local COVID–19
employees, the Department believes a normally be scheduled to work’’ should quarantine or isolation order; has been
full-time employee is an employee who be used ‘‘in place of’’ the average advised by a health care provider to self-
works at least 80 hours over two number of hours worked ‘‘over a 2-week quarantine for COVID-related reasons;
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19332 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
or is experiencing COVID–19 symptoms or paid time off concurrently with the within each workweek could prevent an
and seeking a medical diagnosis, the expanded family and medical leave employer from determining the number
employer must pay the employee his or under the EFMLEA. Although Section of hours an employee would have been
her regular rate of pay (subject to the 102(d)(2)(B) is read broader in the scheduled to work on a particular
qualifications described below) for each traditional FMLA context to include workday.2 Thus, § 826.24(b) provides
hour of paid sick leave taken. If an sick and medical leave, the Department that the six-month average set forth in
employee takes paid sick leave because notes that the FMLA is in part a medical section 110(b)(2)(C) of the FMLA, as
of any other COVID–19 qualifying leave, whereas the leave provided under amended by the EFMLEA, is to be used
reason, the employer must pay the the FFCRA is solely for care for a family to compute pay for each day of
employee two-thirds of the employee’s (i.e., a child whose school or place of expanded family and medical leave
regular rate of pay (subject to the care is closed or whose child care taken where an employee’s work
qualifications described below). provider is unavailable). The schedule varies, without a week-to-week
If the employee’s regular rate of pay Department believes that this flexibility requirement, and has been employed for
is lower than the Federal, State, or local carries out the purposes of the FFCRA at least six months.
minimum wage (if applicable to the by allowing employees to receive full For an employee with a varying
employee), the employee should instead pay during the period for which they schedule of hours who has been
be paid the highest of such amounts. have preexisting accrued vacation or employed for fewer than six months,
That means an employee taking paid personal leave or paid time off, and section 110(b)(2)(C)(i) of the FMLA, as
sick leave because he or she is subject allowing employers to require amended by the EFMLEA, provides that
to a Federal, State, or local COVID–19 employees to take such leave and ‘‘the reasonable expectation of the
quarantine or isolation order; has been minimize employee absences. employee at the time of hiring of the
advised by a health care provider to self- Section 826.24 explains the amount average number of hours per day that
quarantine for COVID-related reasons; an employer must pay an employee for the employee would normally be
or is experiencing COVID–19 symptoms each day of expanded family and scheduled to work’’ should be used to
and seeking a medical diagnosis must be medical leave under the EFMLEA taken compute the amount of pay for each day
paid the highest applicable minimum to care for his or her child whose school of expanded family and medical leave
wage (federal, state, or local). And, an or place of care is closed, or whose child he or she takes after the initial unpaid
employee taking paid sick leave for any care provider is unavailable, for a period. The Department believes such
other COVID–19 qualifying reason must COVID–19 related reason. The payment ‘‘reasonable expectation’’ is best
be paid at least two-thirds of the highest requirement under the EFMLEA is evidenced by an agreement between the
applicable minimum wage. triggered after two weeks that an employer and employee at the time of
The amount an employer is required employee uses leave for this reason. For hiring. Thus, § 826.21(b)(2)(ii) explains
to pay is capped at $511 per day of paid each day of expanded family and the number of hours per day used to
sick leave taken and $5,110 in total per medical leave after the initial two-week compute pay for an employee with a
covered employee for all paid sick leave period, the employer must pay an varying schedule who has been
pay. Furthermore, where an employee is employee taking such leave two-thirds employed for less than six months is
taking paid sick leave at two-thirds pay, of the employee’s regular rate times the equal to the number of hours that the
the amount of pay is subject to a lower number of hours the employee would employee and the employer agreed at
cap of $200 per day of leave and $2,000 normally be scheduled to work that day, the time of hiring that the employee
in total per covered employee for all up to a maximum of $200 per day or would be expected to work, on average,
paid sick leave that is paid at two-thirds $10,000 in total for the additional ten each workday. The agreement could
pay. workweeks. have expressed the average number of
Section 826.23 explains that Some employees do not have a regular hours over any time period—e.g., each
expanded family and medical leave is a work schedule. If the employee’s week, month, or year—so long as that
type of FMLA leave that is available for ‘‘schedule varies week to week to such daily average could be extrapolated. In
certain eligible employees between an extent that an employer is unable to the absence of such an agreement, the
April 1, 2020, and December 31, 2020. determine with certainty [that] number Department believes that the actual
As such, § 826.23(a) explains that an of hours,’’ section 110(b)(2)(C)(i) of the
average number of hours the employee
eligible employee is entitled to up to FMLA, as amended by the EFMLEA,
was scheduled to work each workday
twelve workweeks of expanded family requires the employer to compute pay
and medical leave, as provided under evinces ‘‘the reasonable expectation
per day of expanded family and medical
section 102 of the FMLA, during that . . . of the average number of hours per
leave based on ‘‘the average number of
period. See 29 U.S.C. 2612; see also 29 day that the employee would normally
hours the employee was scheduled per
CFR 825.200. Section 826.23(b) further be scheduled to work.’’ Accordingly,
day over the six-month period ending
clarifies that any time taken by an § 826.21(b)(2)(ii) further states that, in
on the date on which the employee
eligible employee as expanded family the absence of an agreement regarding
takes such leave, including hours for
and medical leave counts towards the the expected number of hours worked
which the employee took leave of any
twelve workweeks of FMLA leave to type.’’ This six-month average of daily each day, the employer should use ‘‘the
which the employee is entitled under hours is possible only if the employee average number of hours per workday
section 102 of the FMLA and 29 CFR has been employed for at least six that the employee was scheduled to
825.200. Because the FFCRA amends months. The Department does not work over the entire period of
the FMLA, and in particular references believe Congress intended for the employment, including hours for which
Section 102(d)(2)(B) of the FMLA, EFMLEA to use this six-month average the employee took leave of any type’’ to
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§ 826.23 explains that an employee may only where an employee’s ‘‘schedule compute the amount of pay for an
elect to use, or an employer may require varies week to week,’’ but also where employee with a varying schedule who
an employee to use, accrued leave that the schedule varies day to day. This is 2 For instance, an employee may always work 40
under the employer’s policies would be because, even if an employee is hours each workweek, but on some weeks the
available to the employee to care for a scheduled for the same number of hours employee works five eight-hour shifts and on other
child, such as vacation or personal leave each workweek, day-to-day variations weeks he or she works four ten-hour shifts.
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19333
has been employed for fewer than six at the same rate. The unpaid period is hours of leave than needed for that
months. therefore intended to ensure that the purpose. Accordingly, pursuant to the
The Department recognizes that the employee has sufficient leave for a Secretary’s authority to issue regulations
two-week initial unpaid period of constant stream of income at two-thirds ‘‘to ensure consistency’’ between the
expanded family and medical leave the regular rate, up to $200 per day, two types of paid leave under the
under § 826.60 is different from the ten- while taking care of his or her child, but FFCRA, § 826.24 states that the unpaid
day unpaid period set forth in section not more paid leave than necessary for period for expanded family and medical
110(b)(1)(A) of the FMLA, as amended that purpose. leave lasts for two weeks rather than ten
by the EFMLEA. This deviation is As explained above, a ten-day period days.3
necessary to ensure that expanded of unpaid expanded family and medical In subsection (d), we made clear that
family and medical leave provided leave satisfies these purposes for an despite the cap on pay, an employee
under the EFMLEA and paid sick leave employee who works a regular 40-hour may elect to use, or an employer may
provided under the EPSLA work week. But the twin purposes of require that an employee take leave
together—as Congress intended—to providing sufficient, yet not excessive, under the employer’s policies that
permit an employee to have a paid leave are not satisfied with respect would be available to the employee to
continuous income stream while taking to employees who work unconventional care for a child, such as vacation or
FFCRA paid leave to care for his or her hours. For instance, consider an personal leave or paid time off,
child whose school or place of care is employee who works twelve hours each concurrently with expanded family and
closed, or whose child care provider is day for three days each workweek, or a medical leave, and the employer must
unavailable, for a COVID–19 related total of 36 hours each workweek. This pay the employee a full day’s pay for
reason. employee would be entitled to 72 hours that day.
The EFMLEA provides that, during of paid sick leave under the EPSLA to Section 826.25 explains how to
the unpaid period of expanded family care for his or her child, which lasts for calculate the regular rate that is used to
and medical leave, an employee may two workweeks. The employee, determine the amount an employer
receive pay by using other paid leave to however, would not be able to take paid must pay an eligible employee who
which he or she may be entitled, expanded family and medical leave at takes paid sick leave or expanded family
including paid sick leave provided by the end of two workweeks time because and medical leave (after the initial two-
the EPSLA. Paid sick leave may be used he would have taken only six workdays week unpaid period). An employee’s
for the same reason as expanded family of such leave, and the ten-day period of regular rate is computed for each
and medical leave, i.e., to care for a unpaid leave would still be in effect. In workweek as defined under section 7(e)
child whose school or place of care is order to have a continuous income of the FLSA, as ‘‘all [non-overtime]
closed, or whose child care provider is stream until the ten-day unpaid period remuneration for employment’’ paid to
unavailable, for a COVID–19 related of expanded family and medical leave the employee except for eight statutory
reason. And the amount of pay per hour expired, the employee would need an exclusions, divided by the number of
of paid sick leave is guaranteed to be at additional 48 hours of paid sick leave. hours worked in that workweek. See 29
least as much as the amount of pay per As another example, consider a
U.S.C. 207(e); see also Bay Ridge
hour for paid expanded family and second employee who works six hours
Operating Co. v. Aaron, 334 U.S. 446,
medical leave, i.e., two-thirds of the each day for six days each workweek,
458 (1948) (stating that the ‘‘regular rate
employee’s regular rate, up to $200 per also for a total of 36 hours each
must be computed by dividing the total
day. Furthermore, the entitlement to workweek. The second employee would
number of hours worked into the total
paid sick leave of an employee with a likewise be entitled to 72 hours of paid
[non-overtime] compensation
regular work schedule, i.e., eight hours sick leave under the EPSLA to care for
each day for five days for a total of 40 his or her child, which lasts for two received’’).
hours each workweek—is the same as workweeks or twelve workdays. The The Department’s regulations at 29
the ten-day period of unpaid expanded period of unpaid expanded family and CFR parts 531 and 778 explain how to
family and medical leave. Such an medical leave would expire after ten calculate the regular rate in different
employee is entitled to 80 hours of paid workdays—two workdays before the circumstances. For example, the
sick leave, which provides pay at two- second employee runs out of paid sick Department uses the computation of an
thirds of the employee’s regular rate, as leave. The second employee may employee’s regular rate with respect to
defined in § 826.25, for ten workdays. If transition from paid sick leave to tips in § 531.60. Moreover, the
the employee were concurrently taking expanded family and medical leave after Department clarifies how to compute an
expanded family and medical leave, he ten workdays, leaving two days of paid employee’s regular rate under different
or she would be able to take paid sick leave unused. In other words, the compensation arrangements, including
expanded family and medical leave at second employee would have two more commissions and piece rates, at
two-thirds the regular rate as soon as the days of paid leave than necessary to §§ 778.110–.122, and explains what
80 hours of paid sick leave runs out. have a continuous income stream at types of compensation are excludable
Thus, paid sick leave and expanded two-thirds the regular rate while caring from the regular rate, at §§ 778.200–
family and medical leave are designed for his or her child. .225. The regular rate used to determine
to work in tandem to provide In short, there is inconsistency the amount of pay due an employee
continuous income for an employee to between the provisions for expanded who takes paid sick leave or expanded
care for his or her child whose school family and medical leave under the family and medical leave must be
or place of care is closed, or whose child EFMLEA and paid sick leave under the computed using the same methods as
care provider is unavailable, for a EPSLA with respect to the first those described in 29 CFR parts 531 and
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COVID–19 related reason. Put another employee because he or she would be 778.
way, the reason for an unpaid initial 48 hours short of being able to have
3 As a practical matter, the unpaid period for
period of expanded family and medical continuous income. And there is
employees who work regular Monday-through-
leave is because an eligible employee inconsistency between the two Acts Friday schedules would still be ten days because
already may concurrently use paid sick with respect to the second employee that is the number of days they would work in two
leave for the same reason and get paid because he or she would have more weeks.
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19334 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
The regular rate must also be day, i.e., a six-month period ending on had been on the employer’s payroll for
computed on a workweek to workweek the date on which the employee first thirty or more of the sixty calendar days
basis. See, e.g., § 778.104 (‘‘Each takes paid sick leave or expanded family prior to the date the employee was laid
workweek stands alone’’). Neither the and medical leave. The Department has off or otherwise terminated. ‘‘For
EPSLA nor the EFMLEA, however, selected this six-month period because example, an employee who was
explains which workweek should be it is sufficiently representative under originally hired by an employer on
used to compute the regular rate that is both the EPSLA and the EFMLEA. And January 15, 2020, but laid off on March
the basis for determining the amount of it minimizes regulatory burden by 14, 2020, would be eligible for leave
pay for leave taken. The Department allowing employers to use the same under the EFMLEA and the EPSLA, if
does not believe it would be appropriate payroll and schedule records to the same employer rehired the
to use the workweek in which an compute both an employee’s average employee on October 1, 2020.’’
employee takes leave because an number of hours worked per day and The EFMLEA and the EPSLA both
employee’s hours worked, and therefore average regular rate. Of course, provide that an employer may exclude
regular rate, in such a workweek is computing an average regular rate used employees who are health care
unlikely to be representative. Indeed, if to determine the amount of pay should providers or emergency responders from
the employee takes leave for the entire be computed over a six-month period is leave requirements under the Acts.
workweek, the regular rate would equal not possible if the employee at issue has Section 826.30(c) reiterates this option
zero. not been employed for at least six and defines which employees are
Instead, the Department believes the months. In such a case, the average ‘‘health care providers’’ or ‘‘emergency
regular rate used to determine the regular rate should be computed over responders’’ whom employers may
amount of pay under the EPSLA and the the entire term of the employment. exclude from eligibility for the EPSLA
EFMLEA should be representative of the and the EFMLEA’s leave requirements.
C. Employee Eligibility for Leave Under An employer’s exercise of this option
employee’s regular rate from week to the EPSLA and the EFMLEA
week. Section 826.25 therefore requires does not impact an employee’s earned
an employer to use an average of the Section 826.30 sets out the criteria for or accrued sick, personal, vacation, or
employee’s regular rate over multiple an employee’s eligibility to receive paid other employer-provided leave under
workweeks.4 Such an average should be sick leave under the EPSLA and/or the employer’s established policies.
weighted by the number of hours expanded family and medical leave Further, an employer’s exercise of this
worked each workweek. For example, under the EFMLEA, which have similar, option does not authorize an employer
consider an employee who receives but not identical, eligibility to prevent an employee who is a health
$400 of non-excludable compensation requirements for leave. This section also care provider or emergency responder
in one week for working 40 hours and addresses when employers may elect to from taking earned or accrued leave in
$200 of non-excludable compensation exclude certain otherwise-eligible accordance with established employer
in the next week for working ten hours. employees from coverage under these policies. Because an employer is not
The regular rate in the first week is $10 Acts. required to exercise this option, if an
Sections 826.30(a) and (b) provide employer does not elect to exclude an
per hour ($400 ÷ 40 hours), and the
that all employees employed by a otherwise-eligible health care provider
regular rate for the second week is $20
covered employer are eligible to take or emergency responder from taking
per hour ($200 ÷ 10 hours). The
paid sick leave under the EPSLA paid leave under the EPSLA or the
weighted average, however, is not regardless of their duration of
computed by averaging $10 per hour EFMLEA, such leave is subject to all
employment, and all employees who other requirements of those laws and
and $20 per hour (which would be $15 have been employed by a covered
per hour). Rather, it is computed by this Part, and should be treated in the
employer for at least thirty calendar same manner for purposes of the tax
adding up all compensation over the days are eligible to take expanded
relevant period (here, two workweeks), credit created by the FFCRA. To
family and medical leave under the minimize the spread of COVID–19, the
which is $600, and then dividing that EFMLEA, subject to the exceptions
sum by all hours worked over the same Department encourages employers to be
described in §§ 826.30(c)–(d) and .40(b). judicious when using this definition to
period, which is 50 hours. Thus, the Section 826.30(b)(1)(i) further exempt health care providers and
weighted average regular rate over this explains that an employee is considered emergency responders from the
two-week period is $12 per hour ($600 to have been employed for at least thirty provisions of the FFCRA.
÷ 50 hours). calendar days for purposes of EFMLEA The Department recognizes that
To be representative, the period over eligibility if the employer had the health care providers whom an
which the regular rate is averaged employee on its payroll for the thirty employer may exempt pursuant to
should be substantially greater than the calendar days immediately prior to the sections 3105 and 5102(a) of the FFCRA
two workweeks used in the above day that the employee’s leave would is broader than the definition of health
example. The Department believes it begin. For example, for an employee to care provider under 29 CFR 825.102.
would be appropriate to compute the be eligible to take leave under the Section 5110(4) of the FFCRA adopts
average regular rate over the same EFMLEA on April 1, 2020, the employee the FMLA definition of ‘‘health care
period used by the EPSLA and the must have been on the employer’s providers,’’ which includes licensed
EFMLEA to compute the employee’s payroll as of March 2, 2020. Section doctors of medicine or osteopathy and
average number of hours worked per 826.30(b)(1)(ii) provides that an ‘‘any other person determined by the
4 The Department notes that § 778.104 states that
employee who is laid off or otherwise Secretary to be capable of providing
the FLSA ‘‘does not permit averaging of hours over
terminated by an employer on or after health care services.’’ 29 U.S.C. 2611(6).
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2 or more weeks’’ for the purpose of computing the March 1, 2020, is nevertheless also The Department defined ‘‘health care
regular rate. But this prohibition against averaging considered to have been employed for at provider’’ narrowly in § 825.102 to
applies when the regular rate is used for its purpose least thirty calendar days, provided the mean medical professionals who are
under the FLSA to compute overtime pay due. It
does not apply when, as here, the regular rate is
employer rehires or otherwise capable of diagnosing serious health
used as a metric for an employee’s average hourly reemploys the employee on or before conditions in light of the FMLA’s
non-overtime wages. December 31, 2020, and the employee requirement for such health care
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19335
providers to issue certifications The specific parameters of the This determination is dependent on
regarding the nature and probable Department’s definition of ‘‘emergency the number of employees at the time an
duration of serious health conditions. responder’’ derive from consultation of employee would take leave. For
See 29 U.S.C. 2613; see also 58 FR various statutory and regulatory example, if an employer has 450
31800 (‘‘Because health care providers definitions and from the consideration employees on April 20, 2020, and an
will need to indicate their diagnosis in of input provided to the Department by employee is unable to work starting on
health care certificates, such a broad various stakeholders and public that date because a health care provider
definition was considered officials. The Department endeavored to has advised that employee to self-
inappropriate.’’). include those categories of employees quarantine because of concerns related
The term ‘‘health care provider’’ as who (1) interact with and aid to COVID–19, the employer must
used in sections 3105 and 5102(a) of the individuals with physical or mental provide paid sick leave to that
FFCRA, however, is not limited to health issues, including those who are employee. If, however, the employer
diagnosing medical professionals. or may be suffering from COVID–19; (2) hires 75 new employees between April
Rather, such health care providers ensure the welfare and safety of our 21, 2020, and August 3, 2020, such that
include any individual who is capable communities and of our Nation; (3) have the employer employs 525 employees as
of providing health care services specialized training relevant to of August 3, 2020, the employer would
necessary to combat the COVID–19 emergency response; and (4) provide not be required to provide paid sick
public health emergency. Such essential services relevant to the leave to a different employee who is
individuals include not only medical American people’s health and unable to work for the same reason
professionals, but also other workers wellbeing. While the Department beginning on August 3, 2020.
who are needed to keep hospitals and endeavored to identify these categories Section 826.40(a) also addresses how
similar health care facilities well of workers, it was cognizant that no list to determine who counts as an
supplied and operational. They further could be fully inclusive or account for employee for this purpose, including
include, for example, workers who are the differing needs of specific discussing categories of workers who do
involved in research, development, and communities. Therefore, the definition (and do not) count toward the 500-
production of equipment, drugs, allows for the highest official of a state employee threshold. In making this
vaccines, and other items needed to or territory to identify other categories determination, the employer should
combat the COVID–19 public health of emergency responders, as necessary. include full-time and part-time
emergency. Accordingly, the Section 826.30(d) explains that the employees, employees on leave,
Department is adopting a definition of CARES Act grants authority to the temporary employees who are jointly
‘‘health care provider’’ that is broader Director of OMB to exclude, for good employed by the employer and another
than the diagnosing medical cause, certain federal government employer, and day laborers supplied by
professionals under § 825.102 for the employers from eligibility to take paid a temporary placement agency.
limited purpose of identifying sick leave or expanded family and Independent contractors that provide
employees whom an employer may medical leave. As to the EFMLEA, the services for an employer do not count
exclude under sections 3105 and Director of OMB may exclude certain towards the 500-employee threshold.
5102(a) of the FFCRA. The definition of categories of United States Executive Nor do employees count who have been
health care provider under § 825.102 Branch employees from expanded laid off or furloughed and have not
continues to apply for other purposes of family and medical leave. As to the subsequently been reemployed.
the FFCRA, such as, for instance, EPSLA, the Director of OMB may Furthermore, employees must be
identifying health care providers who exclude certain categories of federal employed within the United States. For
may advise an employee to self- government employees if they are example, if an employer employs 1,000
quarantine for COVID–19 related covered by Title II of the FMLA, occupy employees in North America, but only
reasons under section 5102(a)(2). a position in the civil service (as defined 250 are employed in a U.S. State, the
The authority for employers to in 5 U.S.C. 2101(1)), and/or are District of Columbia, or a territory or
exempt emergency responders is employees of a United States Executive possession of the United States, that
reflective of a balance struck by the Agency (as defined in 5 U.S.C. 105), employer will be considered to have 250
FFCRA. On the one hand, the FFCRA which includes employees of the U.S. employees and is thus subject to the
provides for paid sick leave and Postal Service and the U.S. Postal and FFCRA.
expanded family and medical leave so Regulatory Commission. Section 826.40(a) further explains that
employees will not be forced to choose joint or integrated employers must
between their paychecks and the D. Employer Coverage Under the EPSLA combine employees in determining the
individual and public health measures and the EFMLEA number of employees they employ for
necessary to combat COVID–19. On the Section 826.40 addresses which this purpose. The FLSA’s test for joint
other hand, providing paid sick leave or employers are covered by the EPSLA employer status applies in determining
expanded family and medical leave and the EFMLEA, that is, which who is a joint employer for purposes of
does not come at the expense of fully employers must provide paid leave to coverage, and the FMLA’s test for
staffing the necessary functions of employees as described in those Acts. integrated employer status applies in
society, including the functions of Section 826.40(a) explains which determining who is an integrated
emergency responders. The FFRCA private employers must provide paid employer, under both the EPSLA and
should be read to complement—and not sick leave and expanded family and the EFMLEA.
detract from—the work being done on medical leave to their employees. Section 826.40(a) does not distinguish
the front lines to treat COVID–19 Specifically, it explains that, subject to between for-profit and non-profit
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patients, prevent the spread of COVID– the exemption described in § 826.40(b), entities; employers of both types must
19, and simultaneously keep Americans all private employers that employ fewer comply with the FFCRA if they
safe and with access to essential than 500 employees at the time an otherwise meet the requirements for
services. Therefore, the Department employee would take leave must coverage.
interprets ‘‘emergency responder’’ comply with the EPSLA and the Section 826.40(b) describes the small
broadly. EFMLEA. employer exemption pursuant to the
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19336 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
Secretary’s regulatory authority to expenses and financial obligations to care providers or emergency responders
exempt small private employers with exceed available business revenue, pose as described in § 826.30(c).
fewer than 50 employees from having to a substantial risk, or prevent the small Section 826.40(c) provides further
provide an employee with paid sick employer from operating at minimum information about which parts of the
leave and expanded family and medical capacity, respectively. Federal government must comply with
leave to care for his or her child whose Section 826.40(b)(2) explains that if a these Acts. Because the EFMLEA only
school or place of care is closed, or small employer decides to deny paid amends Title I of the FMLA, only
child care provider is unavailable, when sick leave or expanded family and employers of employees covered by
such leave would jeopardize the medical leave to an employee or Title I of the FMLA are subject to the
viability of the business as a going employees whose child’s school or requirements of the EFMLEA.
concern. The American Institute of place of care is closed, or whose child Employers of federal employees covered
Certified Public Accountants (AICPA) care provider is unavailable, the small by Title II of the FMLA are not subject
allows companies to use the ‘‘ongoing employer must document the facts and to requirements of the EFMLEA.
concern assumption’’ to defer some of circumstances that meet the criteria set Section 826.40(c) provides certain
its prepaid expenses until future forth in § 826.40(b)(1) to justify such clarifications as to the EPSLA’s and the
accounting periods because the entity denial. The employer should not send EFMLEA’s applicability to public
can continue in business for the such material or documentation to the employers. It explains that all public
foreseeable future without the intention Department, but rather should retain agencies must provide their eligible
nor the necessity to liquidate, cease such records for its own files. employees with paid sick leave, subject
trading, or seek protection from In exercising its authority to exempt to the exceptions set forth in
creditors pursuant to laws or certain employers with fewer than 50 § 826.30(c)–(d). In general, public
regulations. In other words, the business employees, the Department balanced agencies must also provide their eligible
is considered to remain a viable two potentially competing objectives of employees with expanded family and
business for the foreseeable future. the FFCRA. On the one hand, the leave medical leave, subject to the exceptions
There is no formula provided by the afforded by the FFCRA was designed to and limitations set forth in § 826.30(b)–
AICPA to determine the viability of a be widely available to employees to (d). However, as § 826.40(c) clarifies,
business as a going concern, but rather assist them navigating the social and only certain employees of the United
the standard considers conditions or economic impacts of COVID–19 as well States or agencies of the United States
events in the aggregate. as public and private efforts to contain (‘‘federal employees’’) are potentially
and slow the spread of the virus. On the eligible to take expanded family and
The Department believes it is other hand, the Department recognizes medical leave. Those who are
necessary to set forth objective criteria that FFCRA leave entitlements have potentially eligible are the federal
for when a small business with fewer little value if they cause an employer to employees covered by Title I of the
than 50 employees can deny an go out of business and, in so doing, FMLA. Those who are not potentially
employee paid sick leave or expanded deny employees not only leave but also eligible for expanded family and
family and medical leave to care for the jobs. In § 826.40(b), the Department medical leave are the federal employees
employee’s son or daughter whose attempted to extend the leave benefits as whose FMLA coverage is found
school or place of care is closed, or broadly as practicable, but not in elsewhere, including in Title II of the
child care provider is unavailable, for circumstances that would significantly FMLA (codified in Title 5 of the U.S.
COVID–19 related reasons. To that end, increase the likelihood that small Code). Section 826.40(c)(i)–(viii) sets
section 826.40(b)(1) explains that a businesses would be forced to close. forth specific examples of federal
small employer is exempt from the The Department rejected alternative employees covered by Title I of the
requirement to provide such leave arrangements that excessively favored FMLA and therefore potentially eligible
when: (1) Such leave would cause the either the extension of leave or for expanded family and medical leave.
small employer’s expenses and financial exclusion of small businesses or which
obligations to exceed available business E. Intermittent Leave
imposed compliance requirements that
revenue and cause the small employer were overly burdensome, particularly in Section 826.50 outlines the
to cease operating at a minimal capacity; economic conditions resulting from circumstances and conditions under
(2) the absence of the employee or COVID–19. which paid sick leave or expanded
employees requesting such leave would Section 826.40(c) explains which family and medical leave may be taken
pose a substantial risk to the financial public employers must comply with the intermittently under the FFCRA. In this
health or operational capacity of the EPSLA and the EFMLEA. It uses the section, the Department has imported
small employer because of their term ‘‘Public Agency,’’ which as and applied to the FFCRA certain
specialized skills, knowledge of the explained in the definitions section, has concepts of intermittent leave from its
business, or responsibilities; or (3) the the same meaning as in section 203(x) FMLA regulations. However, it has also
small employer cannot find enough of the FLSA. Specifically, public agency modified these concepts and added
other workers who are able, willing, and means the Government of the United additional limitations on the use of
qualified, and who will be available at States; the government of a State or intermittent leave in circumstances
the time and place needed, to perform political subdivision of a State; or an where the Department believes it is
the labor or services the employee or agency of the United States (including incompatible with Congress’ objectives
employees requesting leave provide, the United States Postal Service and to slow the spread of COVID–19.
and these labor or services are needed Postal Regulatory Commission), a State, One basic condition applies to all
for the small employer to operate at a or a political subdivision of a State; or employees who seek to take their paid
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minimal capacity. For reasons (1), (2), any interstate governmental agency. All sick leave or expanded family and
and (3), the employer may deny paid covered public agencies must comply medical leave intermittently—they and
sick leave or expanded family and with both the EPSLA and the EFMLEA their employer must agree. Absent
medical leave only to those otherwise regardless of the number of employees agreement, no leave under the FFCRA
eligible employees whose absence they employ, although such employers may be taken intermittently. Subsection
would cause the small employer’s may exclude employees who are health (a) does not require an employer and
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19337
employee to reduce to writing or spread COVID–19 by reporting to the and ensures that employees are able to
similarly memorialize their agreement. employer’s worksite while taking use the full leave entitlement.
But, in the absence of a written intermittent paid leave. This is not true,
agreement, there must be a clear and however, when the employee takes paid F. Leave To Care for a Child Due to
mutual understanding between the sick leave for other qualifying reasons. School or Place of Care Closure or Child
parties that the employee may take Subsection (b)(2) prohibits employees Care Unavailability—Intersection
intermittent paid sick leave or who report to an employer’s worksite Between the EPSLA and the EFMLEA
intermittent expanded family and from taking paid sick leave
Both the EPSLA and the EFMLEA
medical leave, or both. Additionally, intermittently, notwithstanding any
permit an employee to take paid leave
where an employer and employee agree agreement between the employer and
when needed to care for his or her son
that the latter may take paid sick leave employee to the contrary, if the leave is
or daughter whose school or place of
or expanded family and medical leave taken because the employee: (1) Is
care is closed, or child care provider is
intermittently, they also must agree on subject to a Federal, State, or local
unavailable, due to COVID–19 related
the increments of time in which leave quarantine or isolation order related to
reasons. Section 826.60 sets forth how
may be taken, as explained in COVID–19; (2) has been advised by a
health care provider to self-quarantine the requirements of the EFMLEA and
subsections (b)(1) and (c).
Section 826.50(c) provides that if an due to concerns related to COVID–19; the EPSLA interact when an employee
employer directs or allows an employee (3) is experiencing symptoms of qualifies for both types of leave.
to telework, subject to an agreement COVID–19 and is taking leave to obtain Generally, when an employee
between the employer and employee, a medical diagnosis; (4) is caring for an qualifies for leave under both Acts, an
the employee may take paid sick leave individual who either is subject to a employee may first use the two weeks
or expanded family and medical leave quarantine or isolation order related to of paid leave provided by the EPSLA.
intermittently, in any agreed increment COVID–19 or has been advised by a This use runs concurrent with the first
of time, while the employee is health care provider to self-quarantine two weeks of unpaid leave under the
teleworking. This section intentionally due to concerns related to COVID–19; or EFMLEA. Any remaining leave taken for
affords teleworking employees and (5) is experiencing any other this purpose is paid under the EFMLEA.
employers broad flexibility under the substantially similar condition specified Section 826.60 further explains that
FFCRA to agree on arrangements that by the Secretary of Health and Human where an employee has already taken
balance the needs of each teleworking Services. As the Department explains in some FMLA leave in the current twelve-
employee with the needs of the subsection (b)(2), where paid leave is month leave year as defined by 29 CFR
employer’s business. Moreover, as taken for these reasons, ‘‘the employee 825.200(b), the maximum twelve weeks
teleworking employees present no risk is, may be, or is reasonably likely to of EFMLEA leave is reduced by the
of spreading COVID–19 to work become, sick with COVID–19, or is amount of the FMLA leave entitlement
colleagues, intermittent leave for any exposed to someone who is, may be, or taken in that year. If an employee has
qualifying reason furthers the statute’s is reasonably likely to become, sick with exhausted his or her twelve workweeks
objective to contain the virus. COVID–19.’’ In these situations, the of FMLA or EFMLEA leave, he or she
In contrast, employees who continue employee may not take intermittent may still take EPSLA leave for a
to report to an employer’s worksite may leave due to the unacceptably high risk COVID–19 qualifying reason.
only take paid sick leave or expanded that the employee might spread COVID–
family and medical leave intermittently 19 to other employees when reporting to Section 826.60(b) addresses an
and in any increment—subject to the the employer’s worksite. Once such an employee’s prior use of emergency paid
employer and employee’s agreement— employee begins taking paid sick leave sick leave, which does not prevent the
in circumstances where there is a for one or more of these qualifying employee from taking expanded family
minimal risk that the employee will reasons, the employee must continue to and medical leave. For example, if the
spread COVID–19 to other employees at take paid sick leave each day until the employee takes two weeks of paid sick
an employer’s worksite. Therefore, employee either uses the full amount of leave for a qualifying reason under
subsection (b)(1) allows an employer paid sick leave or no longer has a EPSLA section 5102(a)(1)–(4) and (6),
and employee who reports to an qualifying reason for taking paid sick the employee has exhausted the paid
employer’s worksite to agree that the leave. The Department believes that sick leave available to the employee
employee may take paid sick leave or such a requirement furthers Congress’ under the EPSLA and may not take
expanded family and medical leave objective to slow the spread of COVID– additional paid sick leave for any
intermittently solely to care for the 19. qualifying reason. If the employee then
employee’s son or daughter whose Finally, subsection (d) clarifies that needs to take leave under the EFMLEA,
school or place of care is closed, or where an employer and employee have the employee may do so, but the first
whose child care provider is agreed that FFCRA leave may be taken ten days of expanded family and
unavailable, because of reasons related intermittently, only the amount of leave medical leave may be unpaid. The
to COVID–19. In this context, the actually taken may be counted toward employee may, however, choose to
absence of confirmed or suspected the employee’s leave entitlements. This substitute earned or accrued paid leave,
COVID–19 in the employee’s household is consistent with the requirements for as provided by the employer’s
reduces the risk that the employee will intermittent leave use under the FMLA established policies.
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19338 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
G. Leave To Care for a Child Due to employee took three weeks of leave in access information at the worksite,
School or Place of Care Closure or Child January 2020 for the employee’s own through email, or online. An employer
Care Unavailability—Intersection serious health condition, the employee may post or distribute the required
Between the EFMLEA and the FMLA would only have nine weeks of information provided in the model
Section 826.70 addresses the expanded family and medical leave notice in a different format, as long as
interaction between the new entitlement available. Additionally, employees are the content is accurate and readable.
to take FMLA leave to care for an limited to a total of twelve weeks of Although the FFCRA does not require
employee’s child due to school or place expanded family and medical leave employers to provide a translated notice
of care closure or child care under the EFMLEA, even if the to employees, the Department has
unavailability under the EFMLEA and applicable time period (April 1 to issued a Spanish language version of the
December 31, 2020) spans two twelve- poster. For employers who are covered
an employee’s entitlement to take FMLA
month leave periods under the FMLA. by the EFMLEA but are not covered by
leave for other reasons, such as bonding
Finally, for employees who are eligible the other provisions of the FMLA,
with a newborn or newly placed child,
to take leave under the FMLA and the posting of this FFCRA notice satisfies
for the employee’s own serious health
EFMLEA, and who take leave to care for their FMLA general notice obligation.
condition, or to care for a covered
a service member with a serious injury See 29 U.S.C. 2619; 29 CFR 825.300.
family member with a serious health The Department is aware that
or illness, the total amount of leave
condition. The EFMLEA amended the employers newly affected by the
available to the employee will be
FMLA to add a sixth reason to take the EFMLEA requirements of the FFCRA
calculated as set forth in 29 CFR
twelve-week FMLA entitlement: To care will not have established policies and
825.127(e).
for an employee’s son or daughter As explained in the above discussion practices for administering FMLA leave.
whose school or place of care is closed of § 826.60, the first two weeks of In consideration of these employers, the
or child care provider is unavailable due expanded family and medical leave may number of employees who will be
to COVID–19 related reasons. be unpaid and the employee may eligible to use the FMLA for the first
Eligibility requirements for employees substitute paid sick leave under the time for a limited period of time, and
to take expanded family and medical EPSLA or employer-provided earned interruptions to normal business
leave under the EFMLEA differ from and accrued paid leave during this operations from emergency conditions,
standard FMLA leave. Not all period. After the first two weeks of the Department did not adopt in the
employees who are eligible to take leave, expanded family and medical FFCRA employer notice regulations or
expanded family and medical leave will leave is paid at two-thirds the employer ‘‘specific notice’’ obligations
be eligible to take FMLA leave for other employee’s regular rate of pay, up to that are required in the FMLA
reasons. Employees only need to have $200 per day. See § 826.24. Because this regulations. The FFCRA regulations do
been employed for 30 calendar days in period of expanded family and medical not require employers to respond to
order to be eligible for expanded family leave is paid, the FMLA provision for employees who request or use EFMLEA
and medical leave to care for their child substitution of the employee’s accrued leave with notices of eligibility, rights
due to school or place of care closure or paid leave is inapplicable, and neither and responsibilities, or written
child care unavailability under the the employee nor the employer may designations that leave use counts
EFMLEA. In contrast, to be eligible to require the substitution of paid leave. against employees’ FMLA leave
take FMLA leave for other reasons, However, employers and employees allowances. However, an employer that
employees generally need to have may agree, where Federal or state law has established practices for providing
worked for the employer for at least permits, to have accrued paid leave individual employees with specific
twelve months, have 1,250 hours of supplement the two-thirds pay under notices compliant with the FMLA
service in the twelve-month period prior the EFMLEA so that the employee regulatory guidance at 29 CFR 825.300
to the leave, and work at a location receives the full amount of their normal may prefer to apply their existing
where the employer has at least 50 pay. Federal agencies generally lack practices to EFMLEA leave users.
employees within 75 miles. authority to provide for such a
Employer coverage also differs under I. Employee Notice of Need for Leave
supplement.
the EFMLEA and the FMLA. Most Section 826.90 addresses an
significantly, the EFMLEA applies to all H. Employer Notice employee’s notice to his or her
employers with fewer than 500 Section 826.80 addresses the FFCRA employer regarding the need to take
employees, while the FMLA generally requirement that employers post and leave. Section 826.90(a) explains that for
does not apply to employers with fewer keep posted a notice of the law’s paid sick leave or expanded family and
than 50 employees. Further, employers requirements. As required by the medical leave to care for the employee’s
of health care providers and emergency FFCRA, the Department made a model son or daughter whose school or place
responders may exclude such notice available on March 25, 2020, and of care is closed, or whose child care
employees from the EFMLEA’s leave employers may, free of charge, provider is unavailable, due to COVID–
requirements, but not the FMLA’s. download the poster (WHD1422 REV 19 related reasons, an employer may
An employee’s ability to take 03/20) from the WHD website at https:// require employees to follow reasonable
EFMLEA leave depends on his or her www.dol.gov/whd. In addition to notice procedures as soon as practicable
use of FMLA leave during the 12-month posting the notice in a conspicuous after the first workday or portion of a
FMLA leave year pursuant to 29 CFR place where employees or job applicants workday for which an employee
825.200(b) for a reason unrelated to at a worksite may view it, an employer receives paid sick leave in order to
COVID–19. If an employee has already may distribute the notice to employees continue to receive such leave. Sections
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taken such leave, the employee may not by email, or post the required notice 826.90(b) and (c) explain that it will be
be able to take the full twelve weeks of electronically on an employee reasonable for an employer to require
expanded family and medical leave information website to satisfy the notice as soon as practicable after the
under the EFMLEA. For example, if the FFCRA requirement. An employer may first workday is missed, and to require
employer uses the calendar year as the also directly mail the required notice to that employees provide oral notice and
twelve-month FMLA leave year and an any employees who are not able to sufficient information for an employer
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19339
to determine whether the requested condition related to COVID–19, or to leave. The employer must give the
leave is covered by the FFCRA. The care for the employee’s spouse, son, employee notice of any opportunity to
employer may not require the notice to daughter, or parent with a serious health change plans or benefits, and if the
include documentation beyond what is condition related to COVID–19, the employee requests the changed coverage
allowed by § 826.100. normal FMLA certification requirements it must be provided by the employer.
Section 826.90(d) states that it is still apply. See 29 CFR 825.306. Employees in a group health plan
reasonable for the employer to require who take paid sick leave or expanded
the employee to comply with the K. Health Care Coverage family and medical leave remain
employer’s usual notice procedures and Section 826.110 explains that an responsible for paying the same portion
requirements, absent unusual employee who takes expanded family of the plan premium that the employee
circumstances. If an employee fails to and medical leave or paid sick leave is paid prior to taking leave. If premiums
give proper notice, the employer should entitled to continued coverage under the are adjusted, the employee is required to
give him or her notice of the failure and employer’s group health plan on the pay the new employee premium
an opportunity to provide the required same terms as if the employee did not contribution on the same terms as other
documentation prior to denying the take leave. See 29 U.S.C. 2614(c); see employees. The employee’s share of
request for leave. also 29 U.S.C. 1182 and 26 CFR premiums must be paid by the method
54.9802–1(e)(2)(i); 29 CFR normally used during any paid leave; in
J. Documentation of Need for Leave 2590.702(e)(2)(i) and 45 CFR many cases, this will be through a
An employee must provide his or her 146.121(e)(2)(i) (providing that an payroll deduction. For unpaid leave, or
employer documentation in support of employer cannot establish a rule for where the pay provided by the EFMLEA
paid sick leave or expanded family and group health plan eligibility or set any or the EPSLA is insufficient to cover the
medical leave. As provided in § 826.100, individual’s premium or contribution employee’s premiums, the rule directs
such documentation must include a rate based on whether an individual is employers to 29 CFR 825.210(c), which
signed statement containing the actively at work, unless the employer specifies how employers can obtain
following information: (1) The treats employees who are absent from payment. If an employee chooses not to
employee’s name; (2) the date(s) for work on sick leave as being actively at retain group health plan coverage while
which leave is requested; (3) the work). This rule defines ‘‘group health taking paid sick leave or expanded
COVID–19 qualifying reason for leave; plan’’ using the definition under the family and medical leave, the employee
and (4) a statement representing that the FMLA. See 29 CFR 825.102. is entitled upon returning from leave to
employee is unable to work or telework Maintenance of individual health be reinstated on the same terms as prior
because of the COVID–19 qualifying insurance policies purchased by an to taking the leave, including family
reason. employee from an insurance provider, member coverage.
An employee must provide additional as described in 29 CFR 825.209(a), is the
documentation depending on the responsibility of the employee. L. Multiemployer Plans
COVID–19 qualifying reason for leave. Section 826.110(b)–(g) explains what An employer that is a signatory to a
An employee requesting paid sick leave an employer must do to continue group multiemployer collective bargaining
under § 826.20(a)(1)(i) must provide the health plan coverage on the same terms agreement may satisfy its obligations
name of the government entity that as if the employee did not take paid sick under the EFMLEA and the EPSLA by
issued the quarantine or isolation order leave or expanded family and medical making contributions to a
to which the employee is subject. An leave. These requirements are similar to multiemployer fund, plan, or other
employee requesting paid sick leave the regulatory requirements for program consistent with its bargaining
under § 826.20(a)(1)(ii) must provide the employers when employees take FMLA obligations and its collective bargaining
name of the health care provider who leave for other reasons. In particular, agreement. The contributions must be
advised him or her to self-quarantine for while an employee is taking paid sick based on the amount of paid sick leave
COVID–19 related reasons. An leave or expanded family and medical and expanded family and medical leave
employee requesting paid sick leave leave, the employer must maintain the to which the employee is entitled under
under § 826.20(a)(1)(iv) to care for an same group health plan benefits the applicable provisions of the FFCRA
individual must provide either (1) the provided to an employee and his or her based on each employee’s work under
government entity that issued the family members covered under the plan the multiemployer collective bargaining
quarantine or isolation order to which prior to taking leave—including medical agreement. The fund, plan, or other
the individual is subject or (2) the name care, surgical care, hospital care, dental program must allow employees to
of the health care provider who advised care, eye care, mental health counseling, obtain their pay for the leave to which
the individual to self-quarantine, substance abuse treatment, and other they are entitled under the FFRCA.
depending on the precise reason for the benefit coverage. This requirement also Alternatively, an employer that is part
request. An employee requesting to take applies to benefits provided through a of a multiemployer collective bargaining
paid sick leave under § 826.20(a)(1)(v) supplement to a group health plan, agreement may choose to satisfy its
or expanded family and medical leave whether or not the supplement is obligations under the FFCRA by means
to care for his or her child must provide provided through a flexible spending other than through contribution to a
the following information: (1) The name account or other component of a plan, fund, or program, provided they
of the child being care for; (2) the name cafeteria plan. are consistent with its bargaining
of the school, place of care, or child care Likewise, if an employer provides a obligations and collective bargaining
provider that closed or became new health plan (including a new agreement.
unavailable due to COVID–19 reasons; benefit package option) or benefits or
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and (3) a statement representing that no changes health benefits or plans while M. Return to Work
other suitable person is available to care an employee is taking paid sick leave or Section 826.130 describes an
for the child during the period of expanded family and medical leave, the employee’s right to return to work after
requested leave. employee is entitled to the new or taking paid leave under the EPSLA or
For leave taken under the FMLA for changed plan/benefits to the same the EFMLEA. In most instances, an
an employee’s own serious health extent as if the employee was not on employee is entitled to be restored to
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19340 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
the same or an equivalent position upon documentation provided pursuant to wage for each hour of paid sick leave
return from paid sick leave or expanded § 826.100 for four years, regardless of denied, and an additional equal amount
family and medical leave in the same whether leave was granted or denied. If as liquidated damages, or to obtain an
manner that an employee would be an Employee provided oral statements injunction against the employer.
returned to work after FMLA leave. See to support his or her request for paid Finally, in the case of a repeated or
the FMLA job restoration provisions at sick leave or expanded family and willful violation, the employer shall
29 CFR 825.214 and the FMLA medical leave, the employer is required also be subject to a civil penalty for each
equivalent position provisions at 29 to document and retain such violation, and liable in an additional
CFR 825.215. information for four years. If an amount, as liquidated damages, equal to
However, the new statute does not employer denies an employee’s request the minimum wage for each hour of
protect an employee from employment for leave pursuant to the small business paid sick leave denied.
actions, such as layoffs, that would have exemption under § 826.40(b), the Section 826.151(a) explains that, for
affected the employee regardless of employer must document its authorized purposes of the EFMLEA, employers are
whether the leave was taken. The officer’s determination that the subject to the prohibitions that apply
employer must be able to demonstrate prerequisite criteria for that exemption with respect to all FMLA leave, which
that the employee would have been laid are satisfied and retain such are set forth at 29 U.S.C. 2615.
off even if he or she had not taken leave. documentation for four years. Section Specifically, employers are prohibited
This provision tracks the existing 826.140 also explains what documents from interfering with, restraining, or
provision under the FMLA in 29 CFR the employer should create and retain to denying an employee’s exercise of or
825.216. The employer has the same support its claim for tax credits from the attempt to exercise any right under the
burden of proof to show that an Internal Revenue Service (IRS). A more FMLA, including the EFMLEA;
employee would not otherwise have detailed explanation of how Employers discriminating against an employee for
been employed at the time may claim tax credits can be found at opposing any practice made unlawful
reinstatement is requested in order to https://www.irs.gov/forms-pubs/about- by the FMLA, including the EFMLEA;
deny restoration to employment. form-7200 and https://www.irs.gov/pub/ or interfering with proceedings initiated
The EFMLEA amendments to the irs-drop/n-20-21.pdf. under the FMLA, including the
FMLA specify that the FMLA’s EFMLEA.
O. Prohibited Acts and Enforcement Section 826.151(b) explains that, for
restoration provision in 29 U.S.C.
2614(a)(1) does not apply to an Sections 826.150 and 826.151 purposes of the EFMLEA, employers are
employer who has fewer than twenty- describe certain acts that are prohibited subject to the enforcement provisions
five employees if all four of the under the EPSLA and the EFMLEA, as set forth in section 107 of the FMLA,
following conditions are met: well as enforcement mechanisms. with one exception: an employee may
(a) The employee took leave to care Section 826.150(a) explains that, not bring a private action against an
for his or her son or daughter whose under the EPSLA, employers are employer under the EFMLEA if the
school or place of care was closed or prohibited from discharging, employer, although subject to the
whose child care provider was disciplining, or discriminating against EFMLEA, is not otherwise subject to the
unavailable; any employee because the employee FMLA. See 29 U.S.C. 2617; 29 CFR
(b) The employee’s position no longer took paid sick leave, initiated a 825.400. In other words, an employee
exists due to economic or operating proceeding under or related to paid sick can only bring an action against an
conditions that (i) affect employment leave, or testified or is about to testify employer under the EFMLEA if the
and (ii) are caused by a public health in such a proceeding. employer has had 50 or more employees
emergency (i.e., due to COVID–19 Section 826.150(b) explains that an for each working day during each of
related reasons) during the period of the employer who violates the paid sick twenty or more calendar workweeks in
employee’s leave; leave requirements is considered to the current or preceding calendar year,
(c) The employer made reasonable have failed to pay the minimum wage as required by section 101(4)(A)(i) of the
efforts to restore the employee to the required by section 6 of the FLSA, and FMLA.
same or an equivalent position; and an employer who violates the Section 826.152 provides that
(d) If the employer’s reasonable efforts prohibition on discharge, discipline, or employees may file complaints alleging
to restore the employee fail, the discrimination described in section violations of the EPSLA and/or the
employer makes reasonable efforts for a 826.150(a) is considered to have EFMLEA with WHD.
period of time to contact the employee violated section 15(a)(3) of the FLSA. Section 826.153 sets out the
if an equivalent position becomes See 29 U.S.C. 206, 215(a)(3). With Secretary’s investigative authority under
available. The period of time is respect to such violations, the relevant the EPSLA and the EFMLEA. Under the
specified to be one year beginning either enforcement provisions of sections 16 EPSLA, the Secretary may investigate
on the date the leave related to COVID– and 17 of the FLSA apply. See 29 U.S.C. and gather data in the same manner as
19 reasons concludes or the date twelve 216, 217. authorized by sections 9 and 11 of the
weeks after the employee’s leave began, For instance, an employee may FLSA. See 29 U.S.C. 209, 211. Under the
whichever is earlier. maintain, on behalf of the employee and EFMLEA, the Secretary may investigate
In addition, as these provisions any other similarly-situated employees, and gather data in the same manner as
amend the FMLA, the existing an action in any federal or state court of authorized by sections 106(a) and (d) of
limitation to job restoration for ‘‘key’’ competent jurisdiction to recover an the FMLA. See 29 U.S.C. 2616(a), (d).
employees is applicable to leave taken amount equal to the federal minimum The provisions authorize, among other
under the EFMLEA. The FMLA’s key wage for each hour of paid sick leave things, the Secretary to enter a
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employee regulations are in 29 CFR denied, an additional equal amount as workplace and have access to, inspect,
825.217. liquidated damages, and an amount for and copy documents, and/or require
costs and reasonable attorney’s fees. witness attendance and testimony,
N. Recordkeeping Moreover, the Secretary may bring an relating to any matter under
Section 826.140 explains that an action against an employer to recover an investigation, from any person or entity
employer is required to retain all amount equal to the Federal minimum being investigated or proceeded against,
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19341
at any stage of any proceeding or The Department interprets ‘‘existing to deny the employee the paid sick
investigation, at any place in the United employer policy’’ in section 5107(1)(C) leave to which he or she is entitled.
States. They also permit the Secretary to of the FFCRA to include a COVID–19 Section 826.160(c) explains the
compel the production of relevant related offering of paid leave that the sequencing of expanded family and
documents or testimony by subpoena as employer voluntarily issued prior to medical leave with other types of leave.
permitted by these provisions of law, April 1, 2020, and under which No employer shall require, coerce, or
including that in the event of any failure employees were offered more paid leave unduly influence an employee to use
or refusal to comply with such a than under the employer’s standard or another source of paid leave before
subpoena, the Secretary may obtain current policy. The Department taking expanded family and medical
from any district court in the United acknowledges that some employers leave. However, an eligible employee
States an order to compel production voluntarily offered and provided such may elect to use, or an employer may
and/or testimony. Failure to obey such leave to help their employees in this require that an employee use, leave the
an order may be enforced through time of emergency. Nonetheless, the employee has available under the
contempt proceedings. FFCRA still requires those employers to employer’s policies to care for a child,
provide the entirety of the paid sick such as vacation or personal leave or
P. Effect of Other Laws, Employer paid time off, concurrently. If expanded
leave and expanded family and medical
Practices, and Collective Bargaining family and medical leave is used
leave to which its employees are
Agreements concurrently with another source of
eligible, regardless of whether an
Section 826.160 discusses the effect of employee took the additional paid leave paid leave, then the employer has to pay
taking paid sick leave and expanded the employer voluntarily offered. Doing the employee the full amount to which
family and medical leave on other so is necessary to ensure all eligible the employee is entitled under the
rights, benefits, employer practices, and employees receive the full extent of paid employer’s preexisting paid leave policy
collective bargaining agreements. The sick leave and expanded family and for the period of leave taken, even if that
statutory provisions underlying this medical leave to which they are entitled amount is greater than $200 per day or
section appear in the EPSLA. under the EPSLA and the EFMLEA. $10,000 in the aggregate. But the
Section 826.160(a)(1) explains that an However, an employer may employer’s eligibility for tax credits is
employee’s entitlement to, or actual use prospectively terminate such a still limited to the cap of $200 per day
voluntary additional paid leave offering or $10,000 in the aggregate.
of, paid sick leave is not grounds for
as of April 1, 2020, or thereafter, Section 826.160(d)–(e) explains that
diminishment, reduction, or elimination
provided that the employer had not an employer has no obligation to
of any other right or benefit to which the provide, and an employee has no right
employee is entitled under any other already amended its leave policy to
or entitlement to receive, financial
federal, state, or local law, under any reflect the voluntary offering. This
compensation or other reimbursement
collective bargaining agreement, or means the employer must pay
for unused paid sick leave or unused
under any employer policy that existed employees for leave already taken under
expanded family and medical leave in
prior to April 1, 2020. See 29 U.S.C. such an offering before it is terminated,
the event the employee’s employment
2651(b), 2652. Paid sick leave is in but the employer need not continue the
ends after April 1, 2020, but before the
addition to, and not a substitute for, offering in light of the FFCRA taking
FFCRA’s expiration on December 31,
other sources of leave which the effect.
2020. Moreover, the Department
employee had already accrued, was Finally, the Department clarifies that interprets sections 5107(2) and 5109 of
already entitled to, or had already used, employees do not have any right or the FFCRA to mean that no employer
before the EPSLA became operational entitlement to use paid sick leave or has an obligation to provide, and no
on April 1, 2020, and effective on April expanded family and medical leave employee or former employee has a
2, 2020. Therefore, neither eligibility retroactively, meaning they have no right or entitlement to receive, financial
for, nor use of, paid sick leave may right or entitlement to be paid through compensation or other reimbursement
count against an employee’s balance or paid sick leave or expanded family and for unused paid sick leave or unused
accrual of any other source or type of medical leave for any unpaid or expanded family and medical leave
leave. partially paid leave taken before April 1, upon or after the FFCRA’s expiration on
Section 826.160(a)(2) explains that an 2020. December 31, 2020.
employer may not deny an employee Section 826.160(b) explains the Section 826.160(f) explains that any
paid sick leave or expanded family and sequencing of paid sick leave with other one individual employee is limited to a
medical leave on the grounds that the types of leave. Pursuant to section 5102 maximum of two weeks (80 hours) paid
employee has already taken another of the FFRCA, an employee may choose sick leave as described in § 826.160.
type of leave or taken leave from to use paid sick leave prior to using any Thus, the absolute upper limit of 80
another source, including leave taken other type of paid leave to which he or hours of paid sick leave to which one
for reasons related to COVID–19. she is entitled under any other Federal, could potentially be eligible is per
Regardless of how much other leave an State, or local law; collective bargaining person and not per job. Should an
employee has taken up to the date he or agreement; or employer policy that employee change positions during the
she requests paid sick leave or existed prior to April 1, 2020. As this period of time in which the paid sick
expanded family and medical leave, the decision is at the employee’s discretion, leave is in effect, he or she is not
employer must permit the employee to § 826.160(b)(2) clarifies that no entitled to a new round of paid sick
immediately take any and all paid sick employer shall require, coerce, or leave. Once an employee takes the
leave or expanded family and medical unduly influence an employee to use maximum 80 hours of paid sick leave,
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leave to which he or she is entitled and another source of paid leave before he or she is not entitled to any paid sick
eligible under the EPSLA and the taking paid sick leave. Of course, an leave from a subsequent employer. If an
EFMLEA. However, the preceding employer may not require or influence employee changes positions before
analysis does not apply to or affect the an employee to use unpaid leave prior taking 80 hours of paid sick leave, then
FMLA’s twelve workweeks within a to taking paid sick leave; doing so his or her new employer (if covered by
twelve-month period cap. would be akin to denying or attempting FFCRA) must provide paid sick leave
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19342 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
until the employee has taken 80 hours 110(a)(3)), 5111; CARES Act section 2. Overview of the Rule
of paid sick leave total regardless of the 3611(1)–(2). For the reasons stated The rule implements the EPSLA and
employer providing it. above, the Department has concluded it the EFMLEA, as modified by the CARES
has good cause to make this temporary Act. The EPSLA requires that certain
IV. Statutory and Regulatory
rule effective immediately and until the employers provide two workweeks (up
Requirements
underlying statute sunsets on December to 80 hours) of paid sick leave to eligible
A. Administrative Procedure Act 31, 2020. employees who need to take leave from
This rule is issued without prior B. Executive Order 12866, Regulatory work for specified reasons. The
notice and opportunity to comment and Planning and Review; and Executive EFMLEA requires that certain
with an immediate effective date Order 13563, Improved Regulation and employers provide up to twelve weeks
pursuant to the Administrative Regulatory Review of expanded family and medical leave to
Procedure Act (APA). 5 U.S.C. 553(b) eligible employees who need to take
and (d). 1. Introduction leave from work because the employee
is caring for his or her son or daughter
1. Good Cause To Forgo Notice and Under E.O. 12866, OIRA determines whose school or place of care is closed
Comment Rulemaking whether a regulatory action is or child care provider is unavailable due
The APA, 5 U.S.C. 553(b)(B), significant and therefore, subject to the to COVID–19 related reasons. Payments
authorizes an agency to issue a rule requirements of the E.O. and OMB from employers to employees for such
without prior notice and opportunity to review. Section 3(f) of E.O. 12866 paid leave, as well as allocable costs
comment when the agency, for good defines a ‘‘significant regulatory action’’ related to the maintenance of health
cause, finds that those procedures are as an action that is likely to result in a benefits during the period of the
‘‘impracticable, unnecessary, or contrary rule that (1) has an annual effect on the required leave, is to be reimbursed by
to the public interest.’’ The FFCRA economy of $100 million or more, or the Department of the Treasury via tax
authorizes the Department to issue adversely affects in a material way a credits, up to statutory limits, as
regulations under the EPSLA and the sector of the economy, productivity, provided under the FFCRA.
EFMLEA pursuant to the good cause competition, jobs, the environment,
public health or safety, or state, local, or 3. Economic Impacts
exception of the APA. FFCRA sections
3102(b) (adding FMLA section tribal governments or communities (also The Department estimated the
110(a)(3)), 5111. referred to as economically significant); number of affected employers and
The Department is bypassing advance (2) creates serious inconsistency or quantified the costs associated with this
notice and comment because of the otherwise interferes with an action temporary rule. The paid sick leave and
exigency created by sections 3106 and taken or planned by another agency; (3) the expanded family and medical leave
5108 of the FFCRA, which go into effect materially alters the budgetary impacts provisions of the FFCRA both apply to
on April 1, 2020, and expire on of entitlement grants, user fees, or loan employers with fewer than 500
December 31, 2020. The COVID–19 programs, or the rights and obligations employees. The 2017 Statistics of U.S.
pandemic has escalated at a rapid pace of recipients thereof; or (4) raises novel Businesses (SUSB) reports that there are
and scale, leaving American families legal or policy issues arising out of legal 5,976,761 private firms in the U.S. with
with difficult choices in balancing work, mandates, the President’s priorities, or fewer than 500 employees.5 This
child care, and the need to seek medical the principles set forth in the E.O. As temporary rule says that small
attention for illness caused by the virus. described below, this temporary rule is employers with fewer than 50
To avoid economic harm to American economically significant. The employees may qualify for an
families facing these conditions, a Department has prepared a Regulatory exemption from the requirement to
decision to undertake notice and Impact Analysis (RIA) in connection provide leave due to school or place of
comment rulemaking would likely delay with this rule, as required under section care closings or child care unavailability
final action on this matter by weeks or 6(a)(3) of Executive Order 12866, and if the leave payments would jeopardize
months, and would, therefore, OMB has reviewed the rule. OIRA has the viability of their business as a going
complicate and likely preclude the designated this rule as a ‘‘major rule’’, concern. The 2017 SUSB reports that
Department from successfully exercising as defined by 5 U.S.C. 804(2). there are 5,755,307 private firms with
the authority created by sections 3106 Executive Order 13563 directs fewer than 50 employees, representing
and 5108. Moreover, such delay would agencies to propose or adopt a 96 percent of all impacted firms (firms
be counter to one of the FFCRA’s main regulation only upon a reasoned with fewer than 500 employees). The
purposes in establishing paid leave: determination that its benefits justify its employers who are not able to qualify
enabling employees to leave the costs; the regulation is tailored to for the exemption discussed above are
workplace now to help prevent the impose the least burden on society, those with fewer than 500 employees
spread of COVID–19. consistent with achieving the regulatory but greater than or equal to 50
objectives; and in choosing among employees. Using the SUSB data
2. Good Cause To Proceed With an alternative regulatory approaches, the mentioned above, the Department
Immediate Effective Date agency has selected those approaches estimates that there are 221,454 firms
The APA also authorizes agencies to that maximize net benefits. Executive that meet this criteria.
make a rule effective immediately, upon Order 13563 recognizes that some Although the rule exempts certain
a showing of good cause, instead of benefits are difficult to quantify and health care providers and emergency
imposing a 30-day delay. 5 U.S.C. provides that, where appropriate and responders from the definition of
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553(d)(3). The FFCRA authorizes the permitted by law, agencies may eligible employee for purposes of the
Department to issue regulations that are consider and discuss qualitatively FFCRA, their employers may have some
effective immediately under the EPSLA values that are difficult or impossible to 5 Statistics of U.S. Businesses 2017, https://
and the EFMLEA pursuant to the good quantify, including equity, human www.census.gov/data/tables/2017/econ/susb/2017-
cause exception of the APA. FFCRA dignity, fairness, and distributive susb-annual.html, 2017 SUSB Annual Data Tables
sections 3102(b) (adding FMLA section impacts. by Establishment Industry.
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19343
employees who do not meet this personnel, emergency medical spend one hour to read the rule and
definition, so these employers may still technicians, paramedics, emergency determine their responsibilities to
be impacted by the provisions of the management personnel, 911 operators, provide paid sick leave and expanded
FFCRA. child welfare workers and service family and medical leave. The
The Department estimates that providers, and public works personnel. Department estimates that this will be a
employees who work for employers Because this list consists of occupations one-time rule familiarization cost, as the
with fewer than 500 employees could spread across various industries, the provisions of the Act sunset on
potentially benefit from this rule. Department is unable to use the SUSB December 31, 2020.
According to the 2017 SUSB data, the data to determine the magnitude of The Department’s analysis assumes
5,976,761 firms that meet this criteria potential affected emergency that the rule would be reviewed by
employ 60,556,081 workers. Not all responders. According to the May 2018 Compensation, Benefits, and Job
eligible employees will require use of BLS Occupational Employment and Analysis Specialists (SOC 13–1141) or
the paid sick leave or expanded family Wages estimates, these occupations employees of similar status and
and medical leave provisions of the have a combined employment of 4.4 comparable pay. The median hourly
FFCRA. The Department lacks data to million.7 This may be an over count or wage for these workers is $30.29 per
determine how many employees will an under count of the potentially hour.8 In addition, the Department also
use this leave, which type of leave they exempt emergency responders. The assumes that benefits are paid at a rate
will use and for what reason, and the estimate may be an over count because of 46 percent 9 and overhead costs are
wages of those who will use the leave. it includes employees who work for paid at a rate of 17 percent of the base
Certain health care providers and employers of all sizes, not just those wage, resulting in a fully-loaded hourly
emergency responders may be excluded with fewer than 500 employees. The wage of $49.37.10 The Department
from this group of impacted employees. estimate may be an under count because estimates that the total rule
The rule defines health care provider to it does not include military or national familiarization cost to employers with
include anyone employed at any guard, as they are not counted in the fewer than 50 employees, who spend
doctor’s office, hospital, health care OES estimates. one hour reviewing the rule, will be
center, clinic, post-secondary $284,139,507 (5,755,307 firms × 1 hour
i. Costs × $49.37). The Department estimates
educational institution offering health
care instruction, medical school, local This temporary rule implementing the that the total rule familiarization cost to
health department or agency, nursing paid sick leave and expanded family employers with greater than or equal to
facility, retirement facility, nursing and medical leave provisions of the 50 but fewer than 500 employees will be
home, home health care provider, any FFCRA will result in four different $10,933,184 (221,454 firms × 1 hour ×
facility that performs laboratory or categories of costs to employers: Rule $49.37). Total rule familiarization costs
medical testing, pharmacy, or any familiarization costs, documentation for all impacted firms will therefore be
similar institution. According to the costs, costs of posting a notice, and $295,072,691.
SUSB data mentioned above, employers other managerial and operating costs.
The temporary rule will also result in b. Costs of Documentation
with fewer than 500 employees in the
health care and social assistance increased costs to the Department to Employers with fewer than 50
industry employ 9.0 million workers.6 administer the rule and handle employees are able to be exempt from
complaints and claims related to the providing paid sick leave for child care
This estimate is likely to be the upper
provisions of the Acts. purposes and expanded family and
bound of potentially exempt health care
medical leave under the FFCRA if they
industry workers, because it could a. Rule Familiarization Costs
are able to show that complying with
include workers that may not be The Department estimates that all the requirements would jeopardize the
employed at an institution covered by employers with fewer than 500 viability of their business as a going
the exemption. This estimate may not, employees will need to review the rule concern. These employers will need to
however, include employees who to determine their responsibilities. For demonstrate this burden, and to show
provide services to the health care those 5,755,307 employers with fewer that they are exempt. These small
industry. The SUSB data does not than 50 employees, they will need to employers must document the facts and
include further industry breakouts, and review the rule to determine what the circumstances to demonstrate this
so the Department is unable to rules are for all businesses, what the burden if they have employees who are
determine the exact number of workers small employer exemptions are, and requesting paid sick leave or expanded
employed at these organizations with how to either comply or show that the family and medical leave. Although the
fewer than 500 employees. requirements of the rule would
The rule defines emergency employers are not required to send such
jeopardize the viability of their material or documentation to the
responders as anyone necessary for the business. The Department estimates that
provision of transport, care, healthcare, Department, they are required to retain
these small employers will likely spend such records for their own files. Some
comfort and nutrition of such patients, one hour to understand their
or others needed for the response to employers will not qualify for the
responsibilities under the rule. For the exemption. The Department lacks
COVID–19. The rule provides a list of 221,454 employers with fewer than 500
occupations that includes but is not specific data to estimate the number of
employees, but greater than or equal to small employers who will use the
limited to military or National Guard, 50 employees, they will likely need to
law enforcement officers, correctional exemption, but the Department assumes
institution personnel, fire fighters, 7 Occupational Employment and Wages, May
8 Occupational Employment and Wages, May
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emergency medical services personnel, 2018, https://www.bls.gov/oes/2018/may/
2018, https://www.bls.gov/oes/2018/may/
physicians, nurses, public health oes131141.htm. The Department used SOC codes
29–1060 (Physicians and Surgeons), 29–1141 oes131141.htm.
9 The benefits-earnings ratio is derived from the
(Registered Nurses), 29–1171 (Nurse Practitioners),
6 Statistics of U.S. Businesses 2017, https://
29–2041 (Emergency Medical Technicians and Bureau of Labor Statistics’ Employer Costs for
www.census.gov/data/tables/2017/econ/susb/2017- Paramedics), 33–2000 (Fire Fighting and Prevention Employee Compensation data using variables
susb-annual.html, 2017 SUSB Annual Data Tables Workers), and 33–3000 (Law Enforcement Workers), CMU1020000000000D and CMU1030000000000D.
by Establishment Industry. to represent the occupations listed in the rule. 10 $30.29 + $30.29(0.46) + $30.29(0.17) = $49.37.
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19344 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
that until the end of the year, potentially leave and expanded family and medical Department estimates that all 5,976,761
up to 10 percent of these 5,755,307 leave provisions of the FFCRA are firms with fewer than 500 employees
employers (575,531) will likely required to post this notice. The could potentially incur this cost, but is
document that the requirements of the Department estimates that all 5,976,761 unable to determine the extent to which
Act will jeopardize the viability of their employers with fewer than 500 leave will be used by employees given
businesses. The Department estimates employees will post this notice, and that the various eligibility requirements, and
that each of these employers will spend 99 percent of employers (5,916,993) will therefore cannot estimate the total
one hour for creating and documenting post the information electronically managerial and operation costs
these records. Costs of documentation while 1 percent (59,768) will physically incurred.
for these small employers will therefore post the notice on employee bulletin There are likely other costs to
be $28,413,965 (575,531 firms × 1 hour boards. The Department estimates that it employers for which the Department is
× $49.37). will take 15 minutes (or 0.25 hours) for unable to quantify in part because the
Employers are required to retain all employers posting the provision number of employees who will qualify
records or documentation provided by electronically to prepare and post the for leave under the FFCRA and take
the employee prior to taking paid sick provision, and it will take 75 minutes such leave at each employer is unknown
leave or expanded family and medical (or 1.25 hours) for employers posting and because the productivity losses
leave. When employees take expanded the notice manually to prepare the caused by employees taking leave likely
family and medical leave, employees notice and post it in a conspicuous vary by employer and for each
must provide their employers with place where notices to employees are individual employee, but which are
appropriate documentation in support customarily posted. Employers who discussed qualitatively here. The new
of such leave. Employers must retain post electronically will incur a one-time paid leave provisions of the Act may
this documentation, as it may be cost of $73,030,486 (5,916,993 × 0.25 × result in an increase in the number of
required for tax credits and other $49.37) and those who physically post employees who take advantage of sick
purposes under the FFCRA. For the the notice will incur a one-time cost of leave and family and medical leave,
221,454 employers with between 50 and $3,688,433 (59,768 × 1.25 × $49.37). compared to the number of employees
500 employees, the Department Therefore, the total cost of posting this who would use leave absent the new
estimates that they will spend an notice will be $76,718,919. Employers provisions. When an employee takes
additional one hour, on average, on may also incur a small cost of manually leave, the overall productivity of the
documentation associated with this producing the notices, including paper, business likely will suffer (although
rule. For the 5,755,307 employers with printer ink, etc., but the Department there could be some offsetting
fewer than 50 employees, the believes that this cost will be minimal productivity improvements if coworkers
Department assumes that they will compared to the cost of the time spent are less likely to become infected) and,
spend 30 minutes, on average, on preparing and posting the notice. in some instances, the business may
documentation associated with this face unique operational challenges
rule. The time spent by small employers d. Other Managerial and Operating which could hinder its ability to
will be lower because they have fewer Costs continue operations for the same
employees, and some of them will be In order to comply with the paid sick duration or at the same capacity as
able to use the small business leave and expanded family and medical before the employee(s) took leave. These
exemption from the requirement to leave provisions of the FFCRA, costs are difficult to quantify, but likely
provide leave due to school or childcare employers may incur additional will be significant, especially if a large
closings. The Department believes an managerial and operating costs that the number of employees are eligible for,
average of one hour or 30 minutes is Department is unable to quantify. For and take, leave. These costs are not
appropriate for the year, because some example, when employees require the created specifically because of any
employers will not have any employees use of this paid leave, employers will unique features of this temporary rule,
that will request leave, so will therefore need to determine if their employees are but are directly linked to the statute’s
not need any documentation, while eligible for the leave, and will need to leave provisions.
other employers will have multiple calculate the amount that an employee
employees requesting this leave. should receive, and will need to make e. Costs to the Department
Documentation costs for these the adjustments to an employee’s WHD will also incur costs associated
employers will therefore be paycheck, and will also need to adjust with the paid sick leave and expanded
$153,002,937 (5,755,307 × 0.5 hours × bookkeeping practices to track the family and medical leave provisions of
$49.37) + (221,454 × 1 hour × $49.37). amount of leave used by an employee. the FFCRA. Prior to this Act, WHD had
Total documentation costs for Because the Department lacks data on not enforced a comprehensive paid sick
employers of all sizes are therefore how many employees will require either leave program applicable to a large
estimated to be $181,416,902 paid sick leave or expanded family and segment of the U.S. workforce (minus
($28,413,965 + $153,002,937). medical leave through the end of the the exemptions). WHD will incur the
year, the total managerial and operation additional costs of setting up a new
c. Costs of Posting a Notice costs incurred by employers cannot be enforcement program, administering the
Section 5103(a) of the FFCRA requires quantified. However, for illustrative program, and processing complaints
employers to post a notice to inform purposes, for each employee that associated with this new provision. The
their employees of the requirements of requires the use of this leave, the Department does not have data to assess
the EPSLA. The notice must be posted Department estimates it will take an this cost to the Department.
in a conspicuous place on the premises employer two hours to complete these
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of the employer where notices to additional tasks. If these tasks are ii. Cost Summary
employees are customarily posted, or performed by a Compensation, Benefits, As discussed above, the quantified
emailed or direct mailed to employees, and Job Analysis Specialist with a fully- costs associated with the paid sick leave
or posted electronically on an employee loaded hourly wage of $49.37, then the and expanded family and medical leave
information internal or external website. cost to each employer per employee provisions of the FFCRA and with this
All employers covered by the paid sick requiring leave is $98.74. The temporary rule are rule familiarization
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19345
costs, costs of documentation, and the dollars. The Department estimates that
cost of posting a notice. Table 1 total costs in 2020 are $553 million.
summarizes all of these costs in 2018
iii. Transfers would also need to determine the which is facing unique challenges due
The transfers associated with this rule number of days each employee would to the COVID–19 global pandemic.
are the paid sick leave and expanded take leave, the type of leave employees The expanded family and medical
family and medical leave that would take, and whether EFMLEA leave leave provisions of the FFCRA will
employees will receive as a result of the would run concurrently with certain allow parents to care for their children
FFCRA. The paid leave will initially be previously-provided leave, all of which who are out of school, or whose
provided by employers, who will then would vary depending on whether they childcare provider is unavailable due to
be reimbursed by the Department of the are taking paid sick leave or expanded COVID–19 related reasons. This will
family and medical leave. If an allow parents to avoid extra childcare
Treasury through a tax credit, up to
employee requires the use of paid sick costs that they otherwise may have to
statutory limits, which is then
leave to self-quarantine, they will likely incur.
ultimately paid for by taxpayers Without this paid sick leave and
(although there may be some offsetting take the entire 80 hours allotted,
because the CDC’s guidelines expanded family and medical leave
taxpayer effects due to statutory limits, (that is, without the policy of tying some
which is then ultimately paid for by recommend a quarantine period of two
weeks. Additionally, an employee may federal COVID–19 assistance to
taxpayers’ reduced reliance on social employment arrangements), there could
assistance programs). Such transfers take up to ten weeks of paid expanded
family and medical leave to care for his be long-term costs in addition to the
may be reduced if employees opt to use short term impacts listed above. For
or employers require that employees use or her child whose school or place of
care is closed or child care provider is example, there could be substantial
certain pre-existing leave (i.e., personal rehiring costs for employers when the
or vacation leave or paid time off) unavailable. For school districts that
have closed through the end of the 2020 public health concern has abated and,
concurrently with any EFMLEA leave. simultaneously, transition costs to
As discussed above, the total number of school year, it is likely that these
parents would take the entire twelve workers as they restart their careers. A
employees who are potentially eligible spillover effect of these frictions might
for this leave is as high as 61 million, week allotment. The Department lacks
data to determine which employees will be increased reliance on social
but the number of employees who will assistance programs.
actually use the leave will be a smaller need leave, how many days of leave will
share of this total. The Department does ultimately be used, and how much pay v. Regulatory Alternatives
not know to what extent employees will employers will be required to provide The Department notes that the FFCRA
be exposed to COVID–19 themselves, for such leave. Although the Department delegates to the Secretary the authority
will be subject to a Federal, State, or is unable to quantify the transfer of paid to issue regulations to ‘‘exclude certain
local quarantine, will be caring for an leave, we expect that it is likely to health care providers and emergency
individual exposed to COVID–19, or exceed $100 million in 2020. responders from the definition of
will need to stay home to take care of iv. Benefits eligible employee’’ under section
a child out of school or child care (and 110(a)(1)(A) of the EFMLEA and 5110(1)
unable to telework), and therefore does The benefits of the paid sick leave and of the EPSLA; ‘‘to exempt small
not know how many employees will expanded family and medical leave businesses with fewer than 50
require use of the paid leave provided provisions of the FFCRA are vast, and employees from the requirements’’ of
in the Act. In order to quantify the although unable to be quantified, are section 102(a)(1)(F) of EFMLEA and
potential transfer, the Department expected to greatly outweigh any costs 5102(a)(5) of the EPSLA ‘‘when the
would need to determine the number of of these provisions. With the availability imposition of such requirements would
days of leave that would be taken, and of paid leave, sick or potentially jeopardize the viability of the business
the monetary value of those days of exposed workers will be encouraged to as a going concern’’; and ‘‘as necessary
leave. The FFCRA requires employers to stay home, thereby helping to curb the to carry out the purposes of the EPSLA
pay leave based on an employee’s spread of the virus and lessen the strain to ensure consistency between it and
regular rate, so the Department would on hospitals and health care providers. Division C and Division G of the
need to determine the regular rate of If employees still receive pay while on FFCRA.’’
each employee who requests leave. This leave, they will benefit from being able Because the FFCRA itself establishes
estimate could vary greatly depending to cover necessary expenses, and to the basic expanded family and medical
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on the occupations and industries of continue to spend money to help leave and paid sick leave requirements
employees requesting leave. The share support the economy. This will have that the Department is responsible for
of the regular rate used to calculate the spillover effects not only on the implementing, many potential
transfer would also depend on the individuals who receive pay while on regulatory alternatives would be beyond
reason for which an employee requires leave, but also on their communities the scope of the Department’s authority
ER06AP20.000</GPH>
the use of paid leave. The Department and the national economy as a whole, in issuing this temporary rule. The
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19346 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
Department considered two regulatory to perform critical services needed to may result in increased expenditures by
alternatives to determine the correct battle COVID–19. state, local, and tribal governments, in
balance between providing benefits to the aggregate, or by the private sector, of
C. Regulatory Flexibility Analysis
employees and imposing compliance $165 million ($100 million in 1995
costs on covered employers. This The Regulatory Flexibility Act of 1980 dollars adjusted for inflation using the
section presents the two alternatives to (RFA), 5 U.S.C. 601 et seq., as amended CPI–U) or more in at least one year. This
the provisions set forth in this by the Small Business Regulatory statement must: (1) Identify the
temporary rule. Enforcement Fairness Act of 1996, authorizing legislation; (2) present the
The Department considered one Public Law 104–121 (March 29, 1996), estimated costs and benefits of the rule
regulatory alternative that would be less requires federal agencies engaged in and, to the extent that such estimates
restrictive than what is currently being rulemaking to consider the impact of are feasible and relevant, its estimated
issued and two that would be more their proposals on small entities, effects on the national economy; (3)
restrictive. For the less-restrictive consider alternatives to minimize that summarize and evaluate state, local, and
option, the Department considered impact, and solicit public comment on tribal government input; and (4) identify
excluding all small businesses with their analyses. The RFA requires the reasonable alternatives and select, or
fewer than 50 employees from the assessment of the impact of a regulation explain the non-selection, of the least
requirements of the FFCRA, assuming on a wide range of small entities, costly, most cost-effective, or least
that any requirement to provide including small businesses, not-for- burdensome alternative.
expanded family and medical leave or profit organizations, and small
paid sick leave for child care to their governmental jurisdictions. Agencies (1) Authorizing Legislation
employees would jeopardize the must perform a review to determine This rule is issued pursuant to the
viability of those small businesses. The whether a proposed or final rule would FFCRA.
Department concluded, however, that have a significant economic impact on
a substantial number of small entities. 5 (2) Assessment of Quantified Costs and
requiring small businesses to
U.S.C. 603 and 604. Benefits
demonstrate that the viability of their
business will be jeopardized if they As discussed above, the Department For purposes of the UMRA, this rule
have to provide paid leave would calculated rule familiarization costs, includes a federal mandate that is
ensure uniformity among these documentation costs, and the cost of expected to result in increased
employers, help the Department posting a notice for all employers with expenditures of more than $165 million
administer sections 102(a)(1)(F) of fewer than 500 employees. For in the first year. Based on the cost
FMLA and 5102(a)(5) of the EPSLA, and employers with fewer than 50 analysis in this temporary rule, the
would best conform to the FFCRA. employees, their one-time rule Department determined that the rule
For the first more restrictive familiarization cost would be $49.37. will result in Year 1 total costs for rule
alternative, the Department considered Their cost for documentation would be familiarization, documentation, and
requiring small businesses with fewer $24.69, and the cost of posting a notice posting of notices totaling $553 million
than 50 employees to maintain formal would be $12.84. Total cost to these (see Table 1). There will be no
records in order to demonstrate a need employers would be $111.58. An additional costs incurred in subsequent
for exemption from the rule’s additional ten percent of employers years.
requirements. The Department with fewer than 50 employees will have UMRA requires agencies to estimate
concluded, however, that this an additional documentation cost of the effect of a regulation on the national
requirement would be unnecessarily $49.37 for qualifying for the small economy if, at its discretion, such
onerous for these employers, employer exemption, bringing their total estimates are reasonably feasible and the
particularly given that they are not cost to $160.95. For employers with at effect is relevant and material.11
otherwise subject to the FMLA. The least 50 employees but fewer than 500 However, OMB guidance on this
Department believes that the employees, their one-time rule requirement notes that such
requirements issued in this temporary familiarization cost would be $49.37. macroeconomic effects tend to be
rule will ensure that small employers Their cost for documentation would be measurable in nationwide econometric
have the flexibility they need to balance $49.37, and the cost of posting a notice models only if the economic effect of
their staffing and business needs during would be $12.84. The average the regulation reaches 0.25 percent to
the COVID–19 public health emergency. managerial and operational cost to an 0.5 percent of GDP, or in the range of
For the second more restrictive employer would be $98.74. Total cost to $51.5 billion to $102.9 billion (using
alternative, the Department considered these employers would be $210.32. 2018 GDP). A regulation with smaller
using a more narrow definition of health These estimated costs will be minimal aggregate effect is not likely to have a
care provider and emergency responder for small business entities, and will be measurable effect in macroeconomic
for purposes of excluding such well below one percent of their gross terms unless it is highly focused on a
employees from the EPSLA’s paid sick annual revenues, which is typically at particular geographic region or
leave requirements and/or the least $100,000 per year for the smallest economic sector, which is not the case
EFMLEA’s expanded family and businesses. Based on this determination, with this rule. Given OMB’s guidance,
medical leave requirements. The the Department certifies that the rule the Department has determined that a
Department considered only allowing will not have a significant economic full macroeconomic analysis is not
employers to exclude those workers impact on a substantial number of small likely to show that these costs would
who directly work with COVID–19 entities. have any measurable effect on the
patients, but felt that such a limitation economy.
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would not provide sufficient flexibility D. Unfunded Mandates Reform Act of
to the health care community to make 1995 (3) Least Burdensome Option Explained
necessary staffing decisions to address The Unfunded Mandates Reform Act The Department believes that it has
the COVID–19 public health emergency. of 1995 (UMRA) requires agencies to chosen the least burdensome option
Further, a more narrow definition could prepare a written statement for rules
leave health care facilities without staff that include any federal mandate that 11 See 2 U.S.C. 1532(a)(4).
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19347
given the FFCRA’s provisions. Although retain information submitted by an Signed at Washington, DC, this 1st day of
the Department is requiring small employees to support requests for paid April, 2020.
employers with fewer than 50 sick leave and expanded family and Cheryl M. Stanton,
employees to maintain formal records in medical leave. Section 826.140(a) Administrator, Wage and Hour Division.
order to demonstrate a need for further requires any employer that
■ For the reasons set out in the
exemption from the rule’s requirements denies a request for leave pursuant to
preamble, the Department of Labor
they are not required to provide any the small business exemption under
amends title 29 of the Code of Federal
documents to the Department. The § 826.40(b) must document and retain
Regulations by adding part 826 to read
Department believes that the the determination by its authorizing
as follows:
requirements issued in this temporary officer that it meets the criteria for that
rule will ensure that small employers exemption. Finally, § 826.140(c) PART 826—PAID LEAVE UNDER THE
have the flexibility they need to balance advises, but does not require, employers FAMILIES FIRST CORONAVIRUS
their staffing and business needs during to create and maintain certain records RESPONSE ACT
the COVID–19 pandemic. for the purpose of obtaining a tax credit
from the Internal Revenue Service. Sec.
E. Executive Order 13132 (Federalism) 826.10 General.
Purpose and Use: WHD and
This rule does not have substantial 826.20 Paid leave entitlements.
employees use employer records to 826.21 Amount of Paid Sick Leave.
direct effects on the States, on the determine whether covered employers
relationship between the National 826.22 Amount of pay for Paid Sick Leave.
have complied with various 826.23 Amount of Expanded Family and
Government and the States, or on the requirements under the FFCRA. Medical Leave.
distribution of power and Employers use the records to document 826.24 Amount of pay for Expanded Family
responsibilities among the various compliance with the FFCRA. and Medical Leave.
levels of government. Therefore, in 826.25 Calculating the Regular Rate under
Technology: The regulations prescribe
accordance with section 6 of Executive the FFCRA.
no particular order or form of records, 826.30 Employee eligibility for leave.
Order No. 13132, 64 FR 43255 (Aug. 4,
and employers may preserve records in 826.40 Employer coverage.
1999), this rule does not have sufficient
forms of their choosing, provided that 826.50 Intermittent leave.
federalism implications to warrant the
facilities are available for inspection and 826.60 Leave to care for a Child due to
preparation of a federalism summary
transcription of the records. School or Place of Care closure or Child
impact statement. Care unavailability—intersection
Minimizing Small Entity Burden:
F. Executive Order 13175, Indian Tribal Although the FLSA recordkeeping between the EPSLA and the EFMLEA.
Governments 826.70 Leave to care for a Child due to
requirements do involve small School or Place of Care closure or Child
This rule would not have substantial businesses, including small state and Care unavailability—intersection of the
direct effects on one or more Indian local government agencies, the EFMLEA and the FMLA.
tribes, on the relationship between the Department minimizes respondent 826.80 Employer notice.
Federal Government and Indian tribes, burden by requiring no specific order or 826.90 Employee notice of need for leave.
or on the distribution of power and form of records in responding to this 826.100 Documentation of need for leave.
information collection. 826.110 Health care coverage.
responsibilities between the Federal 826.120 Multiemployer plans.
Government and Indian tribes. Total annual burden estimates, which
826.130 Return to work.
reflect the new responses for the 826.140 Recordkeeping.
G. Paperwork Reduction Act recordkeeping information collection, 826.150 Prohibited acts and enforcement
The Paperwork Reduction Act of 1995 are summarized as follows: under the EPSLA.
(PRA), 44 U.S.C. 3501 et seq., and its Type of Review: Approval of a new 826.151 Prohibited acts and enforcement
attendant regulations, 5 CFR part 1320, collection. under the EFMLEA.
require the Department to consider the Agency: Wage and Hour Division, 826.152 Filing a complaint with the Federal
agency’s need for its information Government.
Department of Labor. 826.153 Investigative authority of the
collections, their practical utility, as Title: Paid Leave under the Families Secretary.
well as the impact of paperwork and First Coronavirus Response Act. 826.160 Effect on other laws, employer
other information collection burdens OMB Control Number: 1235–0NEW. practices, and collective bargaining
imposed on the public, and how to agreements.
Affected Public: Private Sector:
minimize those burdens. The
businesses or other for-profits, farms, Authority: Pub. L. 116–127 sections
Department is seeking emergency
and not-for-profit institutions: State, 3102(b) and 5111(3); Pub. L. 116–136 section
approval related to the collection of 3611(7).
Local and Tribal governments; and
information described herein. Persons
individuals or households. § 826.10 General.
are not required to respond to the
Estimated Number of Respondents:
information collection requirements (a) Definitions. For the purposes of
7,903,071.
until OMB approves them under the this rule:
PRA. This temporary rule creates a new Estimated Number of Responses: Child Care Provider. The term ‘‘Child
information collection specific to paid 7,903,071. Care Provider’’ means a provider who
leave under the FFCRA. The Estimated Burden Hours: 801,962 receives compensation for providing
Department has created a new hours. child care services on a regular basis.
information collection request and Estimated Time per Response: The term includes a center-based child
submitted the request to OMB for Various. care provider, a group home child care
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approval under OMB control number Frequency: Various. provider, a family child care provider,
1235–0NEW (Paid Leave under the Other Burden Cost: $4,255,500 or other provider of child care services
Families First Coronavirus Response (operations/maintenance). for compensation that is licensed,
Act) for this action. regulated, or registered under State law
List of Subjects in 29 CFR Part 826
Summary: Section 826.140(a) requires as described in section 9858c(c)(2)(E) of
covered employer to document and Wages. Title 42; and satisfies the State and local
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19348 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
requirements, including those referred (D) Includes the Government their appointment is subject to approval
to in section 9858c(c)(2)(F) of Title 42. Accountability Office and the Library of by an elected official. See § 825.108 of
Under the Families First Coronavirus Congress. this chapter.
Response Act (FFCRA), the eligible (ii) For purposes of the EPSLA, Public Health Emergency. The term
child care provider need not be ‘‘Employer’’ also specifically identifies ‘‘Public Health Emergency’’ means an
compensated or licensed if he or she is the following as an employer: emergency with respect to COVID–19
a family member or friend, such as a (A) An entity employing a State declared by a Federal, State, or local
neighbor, who regularly cares for the Employee described in section 304(a) of authority.
Employee’s child. the Government Employee Rights Act of School. The term ‘‘School’’ means an
Commerce. The terms ‘‘Commerce’’ 1991; ‘‘elementary school’’ or ‘‘secondary
and ‘‘industry or activity affecting (B) An employing office, as defined in school’’ as such terms are defined
commerce’’ mean any activity, business, section 101 of the Congressional below, in accordance with section 8101
or industry in commerce or in which a Accountability Act of 1995; of the Elementary and Secondary
labor dispute would hinder or obstruct (C) An employing office, as defined in Education Act of 1965 (20 U.S.C. 7801).
commerce or the free flow of commerce, 3 U.S.C. 411(c); and ‘‘Elementary school’’ means a nonprofit
and include ‘‘commerce’’, and any (D) An Executive Agency as defined institutional day or residential school,
‘‘industry affecting commerce’’, as in section 5 U.S.C. 105, and including including a public elementary charter
defined in paragraphs (1) and (3) of the U.S. Postal Service and the Postal school that provides elementary
section 501 of the Labor Management Regulatory Commission. education, as determined under State
EPSLA. The term ‘‘EPSLA’’ means the law. ‘‘Secondary school’’ means a
Relations Act of 1947 (29 U.S.C. 142 (1)
Emergency Paid Sick Leave Act, nonprofit institutional day or residential
and (3)).
Division E of the FFCRA. school, including a public secondary
COVID–19. The term ‘‘COVID–19’’ has
Expanded Family and Medical Leave. charter school that provides secondary
the meaning given the term in section
The term ‘‘Expanded Family and education, as determined under State
506 of the Coronavirus Preparedness
Medical Leave’’ means paid leave under law, except that the term does not
Response Supplemental Appropriations
the EFMLEA. include any education beyond grade 12.
Act, 2020. FFCRA. The term ‘‘FFCRA’’ means the Secretary. The term ‘‘Secretary’’
EFMLEA. The term ‘‘EFMLEA’’ means Families First Coronavirus Response means the Secretary of Labor or his or
the Emergency Family and Medical Act, Public Law 116–127. her designee.
Leave Expansion Act, Division C of the FLSA Terms. The terms ‘‘employ’’, Son or Daughter. The term ‘‘Son or
FFCRA. ‘‘person’’, and ‘‘State’’ have the Daughter’’ has the meaning given such
Employee. The term ‘‘Employee’’ has meanings given such terms in section 3 term in section 101 of the FMLA (29
the same meaning given that term in of the FLSA (29 U.S.C. 203). U.S.C. 2611). Accordingly, the term
section 3(e) of the Fair Labor Standards Paid Sick Leave. The term ‘‘Paid Sick means a biological, adopted, or foster
Act of 1938 (FLSA) (29 U.S.C. 203(e)). Leave’’ means paid leave under the child, a stepchild, a legal ward, or a
Eligible Employee. For the purposes of EPSLA. child of a person standing in loco
the EFMLEA, the term ‘‘Eligible Place of Care. The term ‘‘Place of parentis, who is under 18 years of age;
Employee’’ means an Employee who has Care’’ means a physical location in or 18 years of age or older who is
been employed for at least 30 calendar which care is provided for the incapable of self-care because of a
days by the Employer. Employee’s child while the Employee mental or physical disability.
Employer: works for the Employer. The physical Subject to a quarantine or isolation
(i) Subject to paragraph (ii) of this location does not have to be solely order. For the purposes of the EPSLA,
definition, ‘‘Employer’’: dedicated to such care. Examples a quarantine or isolation order includes
(A) Means any person engaged in include day care facilities, preschools, quarantine, isolation, containment,
Commerce or in any industry or activity before and after school care programs, shelter-in-place, or stay-at-home orders
affecting commerce that: schools, homes, summer camps, issued by any Federal, State, or local
(1) In the case of a private entity or summer enrichment programs, and government authority that cause the
individual, employs fewer than 500 respite care programs. Employee to be unable to work even
Employees; and Public Agency. The term ‘‘Public though his or her Employer has work
(2) In the case of a Public Agency or Agency’’ means the Government of the that the Employee could perform but for
any other entity that is not a private United States; the government of a State the order. This also includes when a
entity or individual, employs one or or political subdivision thereof; any Federal, State, or local government
more Employees; agency of the United States (including authority has advised categories of
(B) Includes: the United States Postal Service and citizens (e.g., of certain age ranges or of
(1) Any person acting directly or Postal Regulatory Commission), a State, certain medical conditions) to shelter in
indirectly in the interest of an employer or a political subdivision of a State; or place, stay at home, isolate, or
in relation to an Employee (within the any interstate governmental agency. See quarantine, causing those categories of
meaning of such phrase in section 3(d) 29 U.S.C. 203(x); 29 U.S.C. Employees to be unable to work even
of the FLSA (29 U.S.C. 203(d)); 5110(2)(B)(i)(III). A Public Agency shall though their Employers have work for
(2) Any successor in interest of an be considered to be a person engaged in them.
employer; Commerce or in an industry or activity Telework. The term ‘‘Telework’’
(3) Joint employers as defined under affecting Commerce. See 29 U.S.C. means work the Employer permits or
the FLSA, part 791 of this chapter, with 2611(4)(B); 29 U.S.C. 5110(2)(B)(ii). allows an Employee to perform while
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respect to certain Employees; and Whether an entity is a Public Agency, as the Employee is at home or at a location
(4) Integrated employers as defined distinguished from a private Employer, other than the Employee’s normal
under the Family and Medical Leave is determined by whether the agency workplace. An Employee is able to
Act (FMLA), § 825.104(c)(2) of this has taxing authority, or whether the Telework if: His or her Employer has
chapter. chief administrative officer or board, work for the Employee; the Employer
(C) Includes any Public Agency; and etc., is elected by the voters-at-large or permits the Employee to work from the
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19349
Employee’s location; and there are no 2020, and will be effective April 2, person if he or she were quarantined or
extenuating circumstances (such as 2020, to December 31, 2020. self-quarantined. For this purpose,
serious COVID–19 symptoms) that (2) Subject to a Quarantine or ‘‘individual’’ does not include persons
prevent the Employee from performing Isolation Order. Any Employee Subject with whom the Employee has no
that work. Telework may be performed to a Quarantine or Isolation Order may personal relationship.
during normal hours or at other times take Paid Sick Leave for the reason (6) An Employee may not take Paid
agreed by the Employer and Employee. described in paragraph (a)(1)(i) of this Sick Leave for the reason described in
Telework is work for which wages must section only if, but for being subject to paragraph (a)(1)(iv) of this section
be paid as required by applicable law the order, he or she would be able to unless, but for a need to care for an
and is not compensated as paid leave perform work that is otherwise allowed individual, the Employee would be able
under the EPSLA or the EFMLEA. or permitted by his or her Employer, to perform work for his or her Employer,
Employees who are teleworking for either at the Employee’s normal either at the Employee’s normal
COVID–19 related reasons must be workplace or by Telework. An workplace or by Telework. An
compensated for all hours actually Employee Subject to a Quarantine or Employee caring for an individual may
worked and which the Employer knew Isolation Order may not take Paid Sick not take Paid Sick Leave where the
or should have known were worked by Leave where the Employer does not Employer does not have work for the
the Employee. However, the provisions have work for the Employee as a result Employee.
of § 790.6 of this chapter shall not apply of the order or other circumstances. (7) An Employee may take Paid Sick
to Employees while they are (3) Advised by a health care provider Leave for the reason described in
teleworking for COVID–19 related to self-quarantine. For the purposes of paragraph (a)(1)(iv) of this section if the
reasons. this section, the term health care Employee is unable to perform work for
(b) Effective period. (1) This part provider has the same meaning as that his or her Employer and if the
became operational on April 1, 2020, term is defined in § 825.102 of this individual depends on the Employee to
and effective on April 2, 2020. chapter. An Employee may take Paid care of him or her and is either:
(2) This part expires on December 31, Sick Leave for the reason described in (i) Subject to a Quarantine or Isolation
2020. paragraph (a)(1)(ii) of this section only Order as described in paragraph
if: (a)(1)(ii) of this subsection; or
§ 826.20 Paid Leave Entitlements. (i) A health care provider advises the (ii) Has been advised to self-
(a) Qualifying reasons for Paid Sick Employee to self-quarantine based on a quarantine by a health care provider
Leave. (1) An Employer shall provide to belief that— because of a belief that—
each of its Employees Paid Sick Leave (A) The Employee has COVID–19; (A) The individual has COVID–19;
to the extent that Employee is unable to (B) The Employee may have COVID– (B) The individual may have COVID–
work due to any of the following 19; or 19 due to known exposure or symptoms
(C) The Employee is particularly (C) The individual is particularly
reasons:
vulnerable to COVID–19; and vulnerable to COVID–19.
(i) The Employee is subject to a (8) Caring for a Son or Daughter. An
Federal, State, or local quarantine or (ii) Following the advice of a health
care provider to self-quarantine prevents Employee has a need to take Paid Sick
isolation order related to COVID–19; Leave if he or she is unable to work due
the Employee from being able to work,
(ii) The Employee has been advised to a need to care for his or her Son or
either at the Employee’s normal
by a health care provider to self- Daughter whose School or Place of Care
workplace or by Telework.
quarantine due to concerns related to has been closed, or whose Child Care
(4) Seeking medical diagnosis for
COVID–19; Provider is unavailable, for reasons
COVID–19. An Employee may take Paid
(iii) The Employee is experiencing Sick Leave for the reason described in related to COVID–19 only if no other
symptoms of COVID–19 and seeking paragraph (a)(1)(iii) of this section if the suitable person is available to care for
medical diagnosis from a health care Employee is experiencing any of the the Son or Daughter during the period
provider; following symptoms: of such leave.
(iv) The Employee is caring for an (i) Fever; (9) An Employee may not take Paid
individual who is subject to an order as (ii) Dry cough; Sick Leave to care for his or her Son or
described in this paragraph (a)(1)(i) or (iii) Shortness of breath; or Daughter unless, but for a need to care
directed as described in this paragraph (iv) Any other COVID–19 symptoms for the Son or Daughter, the Employee
(a)(1)(ii); identified by the U.S. Centers for would be able to perform work for his
(v) The Employee is caring for his or Disease Control and Prevention. or her Employer, either at the
her Son or Daughter whose School or (v) Any Paid Sick Leave taken for the Employee’s normal workplace or by
Place of Care has been closed for a reason described in paragraph (a)(1)(iii) Telework. An Employee caring for his or
period of time, whether by order of a of this subsection is limited to time the her Son or Daughter may not take Paid
State or local official or authority or at Employee is unable to work because the Sick Leave where the Employer does not
the decision of the individual School or Employee is taking affirmative steps to have work for the Employee.
Place of Care, or the Child Care Provider obtain a medical diagnosis, such as (b) Qualifying reason for Expanded
of such Son or Daughter is unavailable, making, waiting for, or attending an Family and Medical Leave. An Eligible
for reasons related to COVID–19; or appointment for a test for COVID–19. Employee may take Expanded Family
(vi) The Employee has a substantially (5) Caring for an individual. For the and Medical Leave because he or she is
similar condition as specified by the purpose of paragraph (a)(1)(iv) of this unable to work due to a need to care for
Secretary of Health and Human section, ‘‘individual’’ means an his or her Son or Daughter whose
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Services, in consultation with the Employee’s immediate family member, School or Place of Care has been closed,
Secretary of the Treasury and the a person who regularly resides in the or whose Child Care Provider is
Secretary of Labor. The substantially Employee’s home, or a similar person unavailable, for reasons related to
similar condition may be defined at any with whom the Employee has a COVID–19. Eligible Employee has need
point during the Effective Period. This relationship that creates an expectation to take Expanded Family and Medical
rule became operational on April 1, that the Employee would care for the Leave for this purpose only if no
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19350 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
suitable person is available to care for scheduled to work each calendar day Eligible Employee takes counts towards
his or her Son or Daughter during the over the six-month period ending on the the twelve workweeks of FMLA leave to
period of such leave. date on which the Employee takes Paid which the Eligible Employee is entitled
(1) An Eligible Employee may not take Sick Leave, including any hours for for any qualifying reason in a twelve-
Expanded Family and Medical Leave to which the Employee took leave of any month period under § 825.200 of this
care for his or her Son or Daughter type. chapter, see § 826.70.
unless, but for a need to care for an (ii) If the part-time Employee has been (c) Section 2612(d)(2)(A) of the FMLA
individual, the Eligible Employee would employed for fewer than six months, the shall be applied, provided however, that
be able to perform work for his or her Employee is entitled to up to the the Eligible Employee may elect, and
Employer, either at the Eligible number of hours of Paid Sick Leave the Employer may require the Eligible
Employee’s normal workplace or by equal to fourteen times the number of Employee, to use only leave that would
Telework. An Eligible Employee caring hours the Employee and the Employer be available to the Eligible Employee for
for his or her Son or Daughter may not agreed to at the time of hiring that the the purpose set forth in § 826.20(b)
take Expanded Family and Medical Employee would work, on average, each under the Employer’s existing policies,
Leave where the Employer does not calendar day. If there is no such such as personal leave or paid time off.
have work for the Eligible Employee. agreement, the Employee is entitled to Any leave that an Eligible Employee
(2) [Reserved] up to the number of hours of Paid Sick elects to use or that an Employer
(c) Impact on FLSA exemptions. The Leave equal to fourteen times the requires the Eligible Employee to use
taking of Paid Sick Leave or Expanded average number of hours per calendar would run concurrently with Expanded
Family and Medical Leave shall not day that the Employee was scheduled to Family and Medical Leave taken under
impact an Employee’s status or work over the entire period of this section.
eligibility for any exemption from the employment, including hours for which
requirements of section 6 or 7, or both, the Employee took leave of any type. § 826.24 Amount of pay for Expanded
Family and Medical Leave.
of the FLSA. § 826.22 Amount of Pay for Paid Sick Subject to § 826.60, after the initial
§ 826.21 Amount of Paid Sick Leave. Leave. two weeks of Expanded Family and
(a) Full-time Employees. (1) A full- (a) Subject to § 826.22(c), for each Medical Leave, the Employer shall pay
time Employee is entitled to up to 80 hour of Pick Sick Leave taken by an the Eligible Employee two-thirds of the
hours of Paid Sick Leave. Employee for qualifying reasons set Eligible Employee’s average regular rate,
(2) An Employee is considered to be forth in sections § 826.20(a)(1) as computed under § 826.25, times the
a full-time Employee under this section through(3), the Employer shall pay the Eligible Employee’s scheduled number
if he or she is normally scheduled to higher of: of hours for each day of such leave
work at least 40 hours each workweek. (1) The Employee’s average regular taken.
(3) An Employee who does not have rate as computed under § 826.25; (a) In no event shall an Employer be
a normal weekly schedule under (2) The Federal minimum wage to required to pay more than $200 per day
§ 826.21(a)(2) is considered to be a full- which the Employee is entitled; or and $10,000 in the aggregate per Eligible
(3) Any State or local minimum wage
time Employee under this section if the Employee when an Eligible Employee
to which the Employee is entitled.
average number of hours per workweek (b) Subject to § 826.22(c), for each takes Expanded Family and Medical
that the Employee was scheduled to hour of Paid Sick Leave taken by an Leave for up to ten weeks after the
work, including hours for which the Employee for qualifying reasons set initial two-week period of unpaid
Employee took leave of any type, is at forth in § 826.20(a)(4) through (6), the Expanded Family and Medical Leave.
least 40 hours per workweek over a (b) For the purpose of this section, the
Employer shall pay the Employee two-
period of time that is the lesser of: ‘‘scheduled number of hours’’ is
thirds of the amount described in
(i) The six-month period ending on determined as follows:
§ 826.24(a). (1) If the Eligible Employee has a
the date on which the Employee takes (c) Limitations on payments:
Paid Sick Leave; or (1) In no event shall an Employer be normal work schedule, the number of
(ii) The entire period of the required to pay more than $511 per day hours the Eligible Employee is normally
Employee’s employment. and $5,110 in the aggregate per scheduled to work on that workday;
(b) Part-time Employees. An (2) If the Eligible Employee has a
Employee when an Employee takes Paid
Employee who does not satisfy the work schedule that varies to such an
Sick Leave for qualifying reasons set
requirements of § 826.21(a) is extent that an Employer is unable to
forth in sections § 826.20(a)(1) through
considered to be a part-time Employee. determine the number of hours the
(3).
(1) If the part-time Employee has a (2) In no event shall an Employer be Eligible Employee would have worked
normal weekly schedule, the Employee required to pay more than $200 per day on the day for which leave is taken and
is entitled to up to the number of hours and $2,000 in the aggregate per has been employed for at least six
of Paid Sick Leave equal to the number Employee when an Employee takes Paid months, the average number of hours
of hours that the Employee is normally Sick Leave for qualifying reasons set the Eligible Employee was scheduled to
scheduled to work over two workweeks. forth in sections § 826.20(a)(4) through work each workday, over the six-month
(2) If the part-time Employee lacks a (6). period ending on the date on which the
normal weekly schedule under Eligible Employee first takes Expanded
§ 826.21(b)(1), the number of hours of § 826.23 Amount of Expanded Family and Family and Medical Leave, including
Paid Sick Leave to which the Employee Medical Leave. hours for which the Eligible Employee
is entitled is calculated as follows: (a) An Eligible Employee is entitled to took leave of any type; or
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(i) If the part-time Employee has been take up to twelve workweeks of (3) If the Eligible Employee has a
employed for at least six months, the Expanded Family and Medical Leave work schedule that varies to such an
Employee is entitled to up to the during the period April 1, 2020 through extent that an Employer is unable to
number of hours of Paid Sick Leave December 31, 2020. determine the number of hours the
equal to fourteen times the average (b) Any time period of Expanded Eligible Employee would have worked
number of hours that the Employee was Family and Medical Leave that an on the day for which leave is taken and
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19351
the Eligible Employee has been regular rate under the FLSA, and office, hospital, health care center,
employed for fewer than six months, the § 531.60 and part 778 of this chapter. clinic, post-secondary educational
average number of hours the Eligible institution offering health care
Employee and the Employer agreed at § 826.30 Employee eligibility for leave. instruction, medical school, local health
the time of hiring that the Eligible (a) Eligibility under the EPSLA. All department or agency, nursing facility,
Employee would work each workday. If Employees of an Employer are eligible retirement facility, nursing home, home
there is no such agreement, the for Paid Sick Leave under the EPSLA, health care provider, any facility that
scheduled number of hours is equal to except as provided in paragraphs (c) and performs laboratory or medical testing,
the average number of hours per (d) of this section and in § 826.40(b). pharmacy, or any similar institution,
workday that the Eligible Employee was (b) Eligibility under the EFMLEA. All Employer, or entity. This includes any
scheduled to work over the entire Employees employed by an Employer permanent or temporary institution,
period of employment, including hours for at least thirty calendar days are facility, location, or site where medical
for which the Eligible Employee took eligible for Expanded Family and services are provided that are similar to
leave of any type. Medical Leave under the EFMLEA, such institutions.
(c) As an alternative, the amount of except as provided in paragraphs (c) and (ii) This definition includes any
pay for Expanded Family and Medical (d) in this section and in § 826.40(b). individual employed by an entity that
Leave may be computed in hourly (1) An Employee is considered to contracts with any of these institutions
increments instead a full day. For each have been employed by an Employer for described above to provide services or
hour of Expanded Family and Medical at least thirty calendar days if: to maintain the operation of the facility
Leave taken after the first two weeks, (i) The Employer had the Employee where that individual’s services support
the Employer shall pay the Eligible on its payroll for the thirty calendar the operation of the facility. This also
Employee two-thirds of the Eligible days immediately prior to the day that includes anyone employed by any entity
Employee’s average regular rate, as the Employee’s leave would begin; or that provides medical services,
(ii) The Employee was laid off or produces medical products, or is
computed under § 826.25.
(d) Notwithstanding paragraph (a) of otherwise terminated by the Employer otherwise involved in the making of
this section, if an Eligible Employee on or after March 1, 2020, and rehired COVID–19 related medical equipment,
elects or is required to use leave or otherwise reemployed by the tests, drugs, vaccines, diagnostic
available to the Eligible Employee for Employer on or before December 31, vehicles, or treatments. This also
the purpose set forth in § 826.20(b) 2020, provided that the Employee had includes any individual that the highest
under the Employer’s policies, such as been on the Employer’s payroll for official of a State or territory, including
vacation or personal leave or paid time thirty or more of the sixty calendar days the District of Columbia, determines is
off, concurrently with Expanded Family prior to the date the Employee was laid a health care provider necessary for that
and Medical Leave, the Employer must off or otherwise terminated. State’s or territory’s or the District of
(2) If an Employee employed by a Columbia’s response to COVID–19.
pay the Eligible Employee a full day’s
temporary placement agency is (iii) Application limited to leave
pay for that day. However, the Employer
subsequently hired by the Employer, the under the EPSLA and the EFMLEA. The
is capped at taking $200 a day or
Employer will count the days worked as definition of ‘‘health care provider’’
$10,000 in the aggregate in tax credits
a temporary Employee at the Employer contained in this subsection applies
for Expanded Family and Medical Leave
toward the thirty-day eligibility period. only for the purpose of determining
paid under the EFMLEA.
(3) An Employee who has been whether an Employer may elect to
§ 826.25 Calculating the Regular Rate employed by a covered Employer for at exclude an Employee from taking leave
under the Family First Coronavirus least thirty calendar days is eligible for under the EPSLA and/or the EFMLEA,
Response Act. Expanded Family and Medical Leave and does not otherwise apply for
(a) Average regular rate. The ‘‘average under the EFMLEA regardless of purposes of the FMLA or section
regular rate’’ used to compute pay for whether the Employee would otherwise 5102(A)(2) of the EPSLA.
Paid Sick Leave and Expanded Family be eligible for leave under the FMLA. (2) Emergency responders—
and Medical Leave is calculated as Thus, for example, an Employee need (i) For the purposes of Employees
follows: not have been employed for 1,250 hours who may be excluded from Paid Sick
(1) Use the methods contained in of service and twelve months of Leave or Expanded Family and Medical
parts 531 and 778 of this chapter to employment as otherwise required Leave by their Employer under the
compute the regular rate for each full under the FMLA, see § 825.110(a)(1)(2) FFCRA, an emergency responder is
workweek in which the Employee has of this chapter, to be eligible for leave anyone necessary for the provision of
been employed over the lesser of: under the EFMLEA. transport, care, healthcare, comfort and
(i) The six-month period ending on (c) Exclusion of Employees who are nutrition of such patients, or others
the date on which the Employee takes health care providers and emergency needed for the response to COVID–19.
Paid Sick Leave or Expanded Family responders. An Employer whose This includes but is not limited to
and Medical Leave; or Employee is a health care provider or an military or national guard, law
(ii) The entire period of employment. emergency responder may exclude such enforcement officers, correctional
(2) Compute the average of the weekly Employee from the EPSLA’s Paid Sick institution personnel, fire fighters,
regular rates under paragraph (a)(1) of Leave requirements and/or the emergency medical services personnel,
this section, weighted by the number of EFMLEA’s Expanded Family and physicians, nurses, public health
hours worked for each workweek. Medical Leave requirements. personnel, emergency medical
(b) Calculating the regular rate for (1) Health care provider— technicians, paramedics, emergency
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commissions, tips, and piece rates. An (i) For the purposes of this definition management personnel, 911 operators,
Employee’s commissions, tips, and Employees who may be exempted from child welfare workers and service
piece rates are incorporated into the Paid Sick Leave or Expanded Family providers, public works personnel, and
regular rate for purposes of the FFCRA and Medical Leave by their Employer persons with skills or training in
to the same extent that they are under the FFCRA, a health care provider operating specialized equipment or
included in the calculation of the is anyone employed at any doctor’s other skills needed to provide aid in a
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19352 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
declared emergency, as well as Employees have worked for the section 5102(a)(5) of the EPSLA would
individuals who work for such facilities Employer; result in the small business’s expenses
employing these individuals and whose (B) Any Employees on leave of any and financial obligations exceeding
work is necessary to maintain the kind; available business revenues and cause
operation of the facility. This also (C) Employees of temporary the small business to cease operating at
includes any individual whom the placement agencies who are jointly a minimal capacity;
highest official of a State or territory, employed under the FLSA, see part 791 (ii) The absence of the Employee or
including the District of Columbia, of this chapter, by the Employer and Employees requesting leave under either
determines is an emergency responder another Employer (regardless of which section 102(a)(1)(F) of the FMLA or
necessary for that State’s or territory’s or Employer’s payroll the Employee section 5102(a)(5) of the EPSLA would
the District of Columbia’s response to appears on); and entail a substantial risk to the financial
COVID–19. (D) Day laborers supplied by a health or operational capabilities of the
(ii) [Reserved] temporary placement agency (regardless business because of their specialized
(d) Exclusion by OMB. The Director of of whether the Employer is the skills, knowledge of the business, or
the Office of Management and Budget temporary placement agency or the responsibilities; or
(OMB) has authority to exclude, for client firm). (iii) There are not sufficient workers
good cause, certain U.S. Government (iii) The number of Employees does who are able, willing, and qualified, and
Employers with respect to certain not include workers who are who will be available at the time and
categories of Executive Branch Eligible independent contractors, rather than place needed, to perform the labor or
Employees from the requirement to Employees, under the FLSA. Nor does services provided by the Employee or
provide paid leave under the EFMLEA. the number of Employees include Employees requesting leave under either
See CARES Act section 4605. workers who have been laid off or section 102(a)(1)(F) of the FMLA or
(e) The Director of the OMB has furloughed and have not subsequently section 5102(a)(5) of the EPSLA, and
authority to exclude certain Employees, been reemployed. these labor or services are needed for
for good cause, from the definition of (2) To determine the number of the small business to operate at a
‘‘Employee’’ for purposes of the EPSLA. Employees employed, all common minimal capacity.
See CARES Act section 4605. The Employees of joint employers or all (2) To elect this small business
categories of Employees the Director of Employees of integrated employers must exemption, the Employer must
the OMB has authority to so exclude be counted together. document that a determination has been
from EPSLA are: (i) Typically, a corporation (including made pursuant to the criteria set forth
(1) Federal officers or Employees its separate establishments or divisions) by the Department in § 826.40(b)(1). The
covered under Title II of the FMLA is considered a single Employer and all Employer should not send such
(which is codified in subchapter V of of its Employees must be counted documentation to the Department, but
chapter 63 of title 5 of the United States together. rather retain the records in its files.
Code); (ii) Where one corporation has an (3) Regardless of whether a small
(2) Other individuals occupying a ownership interest in another Employer chooses to exempt one or
position in the civil service (as that term corporation, the two corporations are more Employees, the Employer is still
is defined in 5 U.S.C. 2101(1)); and separate Employers unless they are joint required to post a notice pursuant to
(3) Employees of a United States employers under the FLSA, see part 791 § 826.80.
Executive Agency, as defined in 5 of this chapter, with respect to certain (c) Public Employers. (1) Any public
U.S.C. 105, including the U.S. Postal Employees. Employer must provide its Employees
Service and U.S. Postal Regulatory (iii) In general, two or more entities Paid Sick Leave except as provided in
Commission. are separate Employers unless they meet § 826.30(c) through (d).
the integrated employer test under the (2) Any public Employer must
§ 826.40 Employer coverage. FMLA. See § 825.104(c)(2) of this provide its Eligible Employees
(a) Private Employers. Any private chapter. If two entities are an integrated Expanded Family and Medical Leave,
entity or individual who employs fewer employer under this test, then except as provided in paragraph (c)(3) of
than 500 Employees must provide Paid Employees of all entities making up the this section and in § 826.30(c) through
Sick Leave and Expanded Family and integrated employer must be counted. (d).
Medical Leave, except as provided in (b) Exemption from requirement to (3) The EFMLEA amended only Title
paragraph (b) of this section or in provide leave under the EPSLA Section I of the FMLA, resulting in a divide in
§ 826.30(c). 5102(a)(5) and the EFMLEA for coverage as to Employees of the United
(1) To determine the number of Employers with fewer than 50 States and of agencies of the United
Employees employed, the Employer Employees. States (Federal Employees). Federal
must count all full-time and part-time (1) An Employer, including a religious Employees covered by Title I of the
Employees employed within the United or nonprofit organization, with fewer FMLA are eligible for Expanded Family
States at the time the Employee would than 50 Employees (small business) is and Medical Leave. But most Federal
take leave. For purposes of this count, exempt from providing Paid Sick Leave Employees are instead covered under
every part-time Employee is counted as under the EPSLA and Expanded Family Title II of the FMLA, which was not
if he or she were a full-time Employee. and Medical Leave under the EFMLEA amended by the EFMLEA. Such Federal
(i) For this purpose, ‘‘within the when the imposition of such Employees are not within the EFMLEA’s
United States’’ means any State within requirements would jeopardize the purview and are therefore not eligible
the United States, the District of viability of the business as a going for Expanded Family and Medical
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Columbia, or any Territory or concern. A small business under this Leave. The Federal Employees covered
possession of the United States. section is entitled to this exemption if by Title I of the FMLA are therefore
(ii) The number of Employees an authorized officer of the business has eligible for Expanded Family and
includes: determined that: Medical Leave, subject to the limitations
(A) All Employees currently (i) The leave requested under either and exceptions set forth in § 826.30(b)
employed, regardless of how long those section 102(a)(1)(F) of the FMLA or through (d), including:
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19353
(i) Employees of the U.S. Postal and Medical Leave intermittently, and exhausted his or her Paid Sick Leave
Service; in any agreed increment of time (but entitlement.
(ii) Employees of the U.S. Postal only when the Employee is unavailable (2) Under the circumstances in (b)(1)
Regulatory Commission; to Telework because of a COVID–19 of this section, the Eligible Employee
(iii) Part-time Employees who do not related reason). may choose to substitute earned or
have an established regular tour of duty (d) Calculation of Leave. If an accrued paid leave provided by the
during the administrative workweek; Employee takes Paid Sick Leave or Employer during this period. The term
(iv) Employees serving under an Expanded Family and Medical Leave substitute means that the preexisting
intermittent appointment or temporary intermittently as the Employee and paid leave provided by the Employer,
appointment with a time limitation of Employer have agreed, only the amount which has been earned or accrued
one year or less; of leave actually taken may be counted pursuant to established policies of the
(v) Employees of the Government toward the Employee’s leave Employer, will run concurrently with
Accountability Office; entitlements. For example, an Employee the unpaid Expanded Family and
(vi) Employees of the Library of who normally works forty hours in a Medical Leave. Accordingly, the Eligible
Congress; and workweek only takes three hours of Employee receives pay pursuant to the
(vii) Other Federal Employees not leave each work day (for a weekly total Employer’s preexisting paid leave
covered by Title II of the FMLA. of fifteen hours) has only taken fifteen policy during the period of otherwise
§ 826.50 Intermittent leave. hours of the Employee’s Paid Sick Leave unpaid Expanded Family and Medical
(a) General Rule. Subject to the or 37.5% of a workweek of the Leave.
Employee’s Expanded Family and (3) If the Eligible Employee does not
conditions and applicable limits, an
Medical Leave. elect to substitute paid leave for unpaid
Employee may take Paid Sick Leave or
Expanded Family and Medical Leave
Expanded Family and Medical Leave § 826.60 Leave to care for a Child due to under the above conditions and
intermittently (i.e., in separate periods School or Place of Care Closure or Child
circumstances, the Eligible Employee
of time, rather than one continuous Care unavailability—intersection between
the EPSLA and the EFMLEA. will remain entitled to any paid leave
period) only if the Employer and
that the Eligible Employee has earned or
Employee agree. The Employer and (a) An Eligible Employee who needs
accrued under the terms of his or her
Employee may memorialize in writing leave to care for his or her Son or
Employer’s plan.
any agreement under this section, but a Daughter whose School or Place of Care
clear and mutual understanding is closed, or whose Child Care Provider § 826.70 Leave to care for a Child due to
between the parties is sufficient. is unavailable, due to COVID–19 related School or Place of Care closure or Child
(b) Reporting to Worksite. The ability reasons may be eligible to take leave Care unavailability—intersection of the
of an Employee to take Paid Sick Leave under both the EPSLA and the EFMLEA and the FMLA.
or Expanded Family and Medical Leave EFMLEA. If so, the benefits provided by (a) Certain employees are entitled to
intermittently while reporting to an the EPSLA run concurrently with those a total of twelve workweeks of FMLA
Employer’s worksite depends upon the provided under the EFMLEA. leave in the twelve-month period
reason for the leave. (1) Intersection between the EPSLA defined in § 825.200(b) of this chapter
(1) If the Employer and Employee and the EFMLEA. An Eligible Employee for the following reasons:
agree, an Employee may take up to the may take up to twelve weeks of (1) The birth of the employee’s son or
entire portion of Paid Sick Leave or Expanded Family and Medical Leave to daughter, and to care for the newborn
Expanded Family and Medical Leave care for his or her Son or Daughter child;
intermittently to care for the Employee’s whose School or Place of Care has been (2) The placement with the employee
Son or Daughter whose School or Place closed, or whose Child Care Provider is of a son or daughter for adoption or
of Care is closed, or Child Care Provider unavailable, due to COVID–19 related foster care, and to care for the newly
is unavailable, because of reasons reasons. placed child;
related to COVID–19. Under such (2) The first two weeks of leave (up to (3) To care for the employee’s spouse,
circumstances, intermittent Paid Sick 80 hours) may be paid under the son, daughter, or parent with a serious
Leave or paid Expanded Family and EPSLA; the subsequent weeks are paid health condition;
Medical Leave may be taken in any under the EFMLEA. (4) Because of a serious health
increment of time agreed to by the (3) An Employee’s prior use of Paid condition that makes the employee
Employer and Employee. Sick Leave under EPSLA will impact unable to perform one or more of the
(2) An Employee may not take Paid the amount of Paid Sick Leave that essential functions of his or her job;
Sick Leave intermittently if the leave is remains available to the Employee. (5) Because of any qualifying exigency
taken for any of the reasons specified in (4) An Eligible Employee who has arising out of the fact that the
§ 826.20(a)(1)(i) through (iv) and (vi). exhausted his or her twelve workweek employee’s spouse, son, daughter, or
Once the Employee begins taking Paid FMLA entitlement, see § 826.70, is not parent is a military member on covered
Sick Leave for one or more of such precluded from taking Paid Sick Leave. active duty status (or has been notified
reasons, the Employee must use the (b) Supplementing Expanded Family of an impending call or order to covered
permitted days of leave consecutively and Medical Leave with other accrued active duty); and
until the Employee no longer has a Employer-provided leave. (6) To care for the Eligible Employee’s
qualifying reason to take Paid Sick (1) Where an Eligible Employee takes Son or Daughter whose School or Place
Leave. Expanded Family and Medical Leave of Care is closed, or Child Care Provider
(c) Teleworking. If an Employer after taking all or part of his or her Paid is unavailable, due to COVID–19 related
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directs or allows an Employee to Sick Leave for a reason other than that reasons.
Telework, or the Employee normally provided in § 826.20(a)(1)(v), all or part (b) If an Eligible Employee has already
works from home, the Employer and of the Eligible Employee’s first ten days taken some FMLA leave for reasons
Employee may agree that the Employee (or first two weeks) of Expanded Family (a)(1) through (5) during the twelve-
may take Paid Sick Leave for any and Medical Leave may be unpaid month period, the Eligible Employee
qualifying reason or Expanded Family because the Eligible Employee will have may take up to the remaining portion of
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19354 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
the twelve workweek leave for regular rate of pay or accrued paid leave (e) For Employers who are covered by
Expanded Family and Medical Leave. If provided by the Employer during this the EFMLEA but are not covered by the
an Eligible Employee has already taken period (see § 826.60). After the first two other provisions of the FMLA, posting
the full twelve workweeks of FMLA weeks of leave, Expanded Family and of this FFCRA notice satisfies their
leave during the twelve-month period, Medical Leave is paid at two-thirds the FMLA general notice obligation. See 29
the Eligible Employee may not take Eligible Employee’s regular rate of pay, U.S.C. 2619; § 825.300 of this chapter.
Expanded Family and Medical Leave. up to $200 per day per Eligible
Employee. Because this period of § 826.90 Employee notice of need for
An Eligible Employee’s entitlement to
leave.
take up to two weeks of Paid Sick Leave Expanded Family and Medical Leave is
under the EPSLA is not impacted by the not unpaid, the FMLA provision for (a) Requirement to provide notice. (1)
Eligible Employee’s use of FMLA leave. substitution of the Employee’s accrued An Employer may require an Employee
For example, if an Eligible Employee paid leave is inapplicable, and neither to follow reasonable notice procedures
used his or her full FMLA leave the Eligible Employee nor the Employer after the first workday (or portion
entitlement for birth and bonding with may require the substitution of paid thereof) for which an Employee takes
a newborn, he or she would still be leave. However, Employers and Eligible Paid Sick Leave for any reason other
entitled to take Paid Sick Leave (for any Employees may agree, where Federal or than that described in § 826.20(a)(1)(v).
covered reason), but could not take state law permits, to have paid leave Whether a procedure is reasonable will
Expanded Family and Medical Leave in supplement pay under the EFMLEA so be determined under the facts and
the same twelve-month period if his or that the Employee receives the full circumstances of each particular case.
her child’s day care closed due to amount of his or her normal pay. For Nothing in this section precludes an
COVID–19 related reasons. example, an Eligible Employee and Employee from offering notice to an
(c) If an Eligible Employee takes fewer Employer may agree to supplement the Employer sooner; the Department
than twelve weeks of Expanded Family Expanded Family and Medical Leave by encourages, but does not require,
and Medical Leave, the Employee may substituting one-third hour of accrued Employees to notify Employers about
take up to the remaining portion of the vacation leave for each hour of their request for Paid Sick Leave or
twelve weeks FMLA leave entitlement Expanded Family and Medical Leave. If Expanded Family and Medical Leave as
for reasons described in paragraphs the Eligible Employee and Employer do soon as practicable. If an Employee fails
(a)(1) through (5) of this section. For not agree to supplement paid leave in to give proper notice, the Employer
example, if an Eligible Employee takes the manner described above, the should give him or her notice of the
eight weeks of Expanded Family and Employee will remain entitled to all the failure and an opportunity to provide
Medical Leave to care for his or her Son paid leave which is earned or accrued the required documentation prior to
or Daughter whose School is closed due under the terms of the Employer’s plan denying the request for leave.
to COVID–19 related reasons, he or she for later use. This option is not available (2) In any case where an Employee
could take up to four workweeks of to Federal agencies if such partial leave requests leave in order to care for the
unpaid FMLA leave for his or her own payment would be contrary to a Employee’s Son or Daughter whose
serious health condition later in the governing statute or regulation. School or Place of Care is closed, or
twelve-month period. Child Care Provider is unavailable, due
(d) If an employee has taken FMLA § 826.80 Employer notice. to COVID–19 related reasons, if that
leave to care for a covered service (a) Every Employer covered by leave was foreseeable, an Employee
member with a serious injury or illness, FFCRA’s paid leave provisions is shall provide the Employer with notice
the remaining FMLA leave entitlement required to post and keep posted on its of such Paid Sick Leave or Expanded
that may be used for Expanded Family premises, in conspicuous places a Family and Medical Leave as soon as
and Medical Leave is calculated in notice explaining the FFCRA’s paid practicable. If an Employee fails to give
accordance with § 825.127(e) of this leave provisions and providing proper notice, the Employer should give
chapter. information concerning the procedures him or her notice of the failure and an
(e) An Eligible Employee can take a for filing complaints of violations of the opportunity to provide the required
maximum of twelve workweeks of FFCRA with the Wage and Hour documentation prior to denying the
Expanded Family and Medical Leave Division. request for leave.
during the period in which the leave (b) An Employer may satisfy this (b) Timing and delivery of notice.
may be taken (April 2, 2020 to requirement by emailing or direct Notice may not be required in advance,
December 31, 2020) even if that period mailing this notice to Employees, or and may only be required after the first
spans two FMLA leave twelve-month posting this notice on an Employee workday (or portion thereof) for which
periods. For example, if an Employer’s information internal or external website. an Employee takes Paid Sick Leave or
twelve-month period begins on July 1, (c) To meet the requirements of Expanded Family and Medical Leave.
and an Eligible Employee took seven paragraph (a) of this section, Employers After the first workday, it will be
weeks of Expanded Family and Medical may duplicate the text of the reasonable for an Employer to require
Leave in May and June, 2020, the Department’s model notice (WHD 1422 notice as soon as practicable under the
Eligible Employee could only take up to REV 03/20) or may use another format facts and circumstances of the particular
five additional weeks of Expanded so long as the information provided case. Generally, it will be reasonable for
Family and Medical Leave between July includes, at a minimum, all of the notice to be given by the Employee’s
1 and December 31, 2020, even though information contained in that notice. spokesperson (e.g., spouse, adult family
the first seven weeks of Expanded Prototypes are available at www.dol.gov/ member, or other responsible party) if
Family and Medical Leave fell in the whd. Employers furnishing notices to the Employee is unable to do so
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prior twelve-month period. sensory-impaired individuals must also personally.
(f) The first two weeks of Expanded comply with all applicable requirements (c) Content of notice. Generally, it will
Family and Medical Leave may be under Federal or State law. be reasonable for an Employer to require
unpaid and the Eligible Employee may (d) This section does not require oral notice and sufficient information
substitute Paid Sick Leave under the translation or provision of the notice in for an Employer to determine whether
EPSLA at two-thirds the Employee’s languages other than English. the requested leave is covered by the
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19355
EPSLA or the EFMLEA. An Employer which the Employee takes Paid Sick Employee is entitled to the new or
may not require the notice to include Leave or Expanded Family and Medical changed plan/benefits to the same
documentation beyond what is allowed Leave. extent as if the Employee was not on
by § 826.100. (f) The Employer may also request an leave. Any other plan changes (e.g., in
(d) Complying with Employer policy. Employee to provide such additional coverage, premiums, deductibles, etc.)
Generally, it will be reasonable for the material as needed for the Employer to which apply to all Employees of the
Employer to require the Employee to support a request for tax credits workforce would also apply to
comply with the Employer’s usual and pursuant to the FFCRA. The Employer Employees taking Paid Sick Leave or
customary notice and procedural is not required to provide leave if Expanded Family and Medical Leave.
requirements for requesting leave, materials sufficient to support the (d) Notice of any opportunity to
absent unusual circumstances. applicable tax credit have not been change plans or benefits must also be
provided. For more information, please given to an Employee taking Paid Sick
§ 826.100 Documentation of need for consult https://www.irs.gov/newsroom/ Leave or Expanded Family and Medical
leave. covid-19-related-tax-credits-for- Leave. If the Employee requests the
(a) An Employee is required to required-paid-leave-provided-by-small- changed coverage, the Employer must
provide the Employer documentation and-midsize-businesses-faqs. provide it.
containing the following information (e) An Employee remains responsible
prior to taking Paid Sick Leave under § 826.110 Health care coverage. for paying his or her portion of group
the EPSLA or Expanded Family and (a) While an Employee is taking Paid health plan premiums which had been
Medical Leave under the EFMLEA: Sick Leave or Expanded Family and paid by the Employee prior to taking
(1) Employee’s name; Medical Leave, an Employer must Paid Sick Leave or Expanded Family
(2) Date(s) for which leave is maintain the Employee’s coverage under and Medical Leave. If premiums are
requested; any group health plan (as defined in the raised or lowered, the Employee would
(3) Qualifying reason for the leave; Internal Revenue Code of 1986 at 26 be required to pay the new Employee
and U.S.C. 5000(b)(1)) on the same premium contribution on the same
(4) Oral or written statement that the conditions as coverage would have been terms as other Employees. The
Employee is unable to work because of provided if the Employee had been Employee’s share of premiums must be
the qualified reason for leave. continuously employed during the paid by the method normally used
(b) To take Paid Sick Leave for a entire leave period. All Employers during any paid leave, presumably as a
qualifying COVID–19 related reason covered by the EPSLA or the EFMLEA payroll deduction. If leave is unpaid, or
under § 826.20(a)(1)(i), an Employee are subject to the requirement to the Employee’s pay during leave is
must additionally provide the Employer maintain health coverage. The term insufficient to cover the Employee’s
with the name of the government entity ‘‘group health plan’’ has the same share of the premiums, the Employer
that issued the Quarantine or Isolation meaning as under the FMLA (see may obtain payment from the Employee
Order. § 825.102 of this chapter). Maintenance in accordance with § 825.210(c) of this
(c) To take Paid Sick Leave for a of individual health insurance policies chapter.
qualifying COVID–19 related reason purchased by an Employee from an (f) An Employee may choose not to
under § 826.20(a)(1)(ii) an Employee insurance provider, as described in retain group health plan coverage while
must additionally provide the Employer § 825.209(a) of this chapter, is the an Employee is taking Paid Sick Leave
with the name of the health care responsibility of the Employee. or Expanded Family and Medical Leave.
provider who advised the Employee to (b) The same group health plan However, when an Employee returns
self-quarantine due to concerns related benefits provided to an Employee prior from leave, the Employee is entitled to
to COVID–19. to taking Paid Sick Leave or Expanded be reinstated on the same terms as prior
(d) To take Paid Sick Leave for a Family and Medical Leave must be to taking the leave, including family or
qualifying COVID–19 related reason maintained while an Employee is taking dependent coverages, without any
under § 826.20(a)(1)(iii) an Employee Paid Sick Leave or Expanded Family additional qualifying period, physical
must additionally provide the Employer and Medical Leave. For example, if examination, exclusion of pre-existing
with either: family member coverage is provided to conditions, etc.
(1) The name of the government entity an Employee, family member coverage (g) Except as required by the
that issued the Quarantine or Isolation must be maintained while an Employee Consolidated Omnibus Budget
Order to which the individual being is taking Paid Sick Leave or Expanded Reconciliation Act of 1986 (COBRA), an
care for is subject; or Family and Medical Leave. Similarly, Employer’s obligation to maintain
(2) The name of the health care benefit coverage for medical care, health benefits while an Employee is
provider who advised the individual surgical care, hospital care, dental care, taking Paid Sick Leave or Expanded
being cared for to self-quarantine due to eye care, mental health counseling, Family and Medical Leave ceases under
concerns related to COVID–19. substance abuse treatment, etc., must be this section if and when the
(e) To take Paid Sick Leave for a maintained while an Employee is taking employment relationship would have
qualifying COVID–19 related reason Paid Sick Leave or Expanded Family terminated if the Employee had not
under § 826.20(a)(1)(v) or Expanded and Medical Leave if provided in an taken Paid Sick Leave or Expanded
Family and Medical Leave, an Employee Employer’s group health plan, including Family and Medical Leave (e.g., if the
must additionally provide: a supplement to a group health plan, Employee fails to return from leave, or
(1) The name of the Son or Daughter whether or not provided through a if the entitlement to leave ceases
being cared for; flexible spending account or other because an Employer closes its
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(2) The name of the School, Place of component of a cafeteria plan. business).
Care, or Child Care Provider that has (c) If an Employer provides a new
closed or become unavailable; and health plan or benefits or changes health § 826.120 Multiemployer plans.
(3) A representation that no other benefits or plans while an Employee is (a) Paid Sick Leave. In accordance
suitable person will be caring for the taking Paid Sick Leave or Expanded with its existing collective bargaining
Son or Daughter during the period for Family and Medical Leave, the obligations, an Employer signatory to a
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19356 Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations
multiemployer collective bargaining (1) An Employee is not protected from to document and maintain such
agreement may satisfy its obligations to employment actions, such as layoffs, information in its records for four years.
provide Paid Sick Leave by making that would have affected the Employee (b) An Employer that denies an
contributions to a multiemployer fund, regardless of whether he or she took Employee’s request for Paid Sick Leave
plan, or other program. Such leave. In order to deny restoration to or Expanded Family and Medical Leave
contributions must be based on the employment, an Employer must be able pursuant to § 826.40(b) shall document
hours of Paid Sick Leave to which each to show that an Employee would not the determination by its authorized
Employee is entitled under the EPSLA otherwise have been employed at the officer that it is eligible for such
according to each Employee’s work time reinstatement is requested in order exemption and retain such
under the multi-employer collective to deny restoration to employment. documentation for four years.
bargaining agreement. (2) For leave taken under the (c) In order to claim tax credits from
(b) Expanded Family and Medical EFMLEA, an Employer may deny job the Internal Revenue Service (IRS), an
Leave. In accordance with its existing restoration to key Eligible Employees, as Employer is advised to maintain the
collective bargaining obligations, an defined under the FMLA (§ 825.217 of following records for four years:
Employer signatory to a multiemployer this chapter), if such denial is necessary (1) Documentation to show how the
collective bargaining agreement may to prevent substantial and grievous Employer determined the amount of
satisfy its obligations to provide economic injury to the operations of the paid sick leave and expanded family
Expanded Family and Medical Leave by Employer. and medical leave paid to Employees
making contributions to a (3) An Employer who employs fewer that are eligible for the credit, including
multiemployer fund, plan, or other than twenty-five Eligible Employees records of work, Telework and Paid Sick
program. Such contributions must be may deny job restoration to an Eligible Leave and Expanded Family and
based on the hours of paid family and Employee who has taken Expanded Medical Leave;
medical leave to which each Eligible Family and Medical Leave if all four of (2) Documentation to show how the
Employee is entitled under the the following conditions exist: Employer determined the amount of
EFMLEA, according to each Eligible (i) The Eligible Employee took leave qualified health plan expenses that the
Employee’s work under the to care for his or her Son or Daughter Employer allocated to wages;
multiemployer collective bargaining (3) Copies of any completed IRS
whose School or Place of Care was
agreement. Forms 7200 that the Employer
closed, or whose Child Care Provider
(c) Employee access. Any submitted to the IRS;
was unavailable, for COVID–19 related
multiemployer fund, plan, or program (4) Copies of the completed IRS Forms
reasons;
under section (a) or (b) of this section 941 that the Employer submitted to the
must enable or otherwise allow (ii) The position held by the Eligible IRS or, for Employers that use third
Employees to secure payments for Paid Employee when the leave commenced party payers to meet their employment
Sick Leave or Expanded Family and does not exist due to economic tax obligations, records of information
Medical Leave. If the multiemployer conditions or other changes in operating provided to the third party payer
fund, plan, or program does not enable conditions of the Employer that affect regarding the Employer’s entitlement to
or otherwise allow Employees to secure employment and are caused by a Public the credit claimed on IRS Form 941, and
payments for paid leave to which they Health Emergency during the period of (5) Other documents needed to
are entitled under the FFCRA based on leave; support its request for tax credits
their work under the multiemployer (iii) The Employer makes reasonable pursuant to IRS applicable forms,
collective bargaining agreement, the efforts to restore the Eligible Employee instructions, and information for the
multiemployer fund, plan, or program to a position equivalent to the position procedures that must be followed to
does not satisfy the requirements of the the Eligible Employee held when the claim a tax credit. For more information,
FFCRA. leave commenced, with equivalent please consult https://www.irs.gov/
(d) Alternative means of compliance. employment benefits, pay, and other newsroom/covid-19-related-tax-credits-
In accordance with its existing terms and conditions of employment; for-required-paid-leave-provided-by-
collective bargaining obligations, an and small-and-midsize-businesses-faqs.
Employer signatory to a multiemployer (iv) Where the reasonable efforts of
collective bargaining agreement may the Employer to restore the Eligible § 826.150 Prohibited acts and enforcement
Employee to an equivalent position fail, under the EPSLA.
satisfy its obligations to provide Paid
Sick Leave under the EPSLA or the Employer makes reasonable efforts (a) Prohibited acts. An Employer is
Expanded Family and Medical Leave to contact the Eligible Employee during prohibited from discharging,
under the EFMLEA by means other than a one-year period, if an equivalent disciplining, or discriminating against
those set forth in paragraph (a) and (b) position becomes available. The one- any Employee because such Employee
of this section, provided such means are year period begins on the earlier of the took Paid Sick Leave under the EPSLA.
consistent with its existing bargaining date the leave related to a Public Health Likewise, an Employer is prohibited
obligations and any applicable Emergency concludes or the date twelve from discharging, disciplining, or
collective bargaining agreement. weeks after the Eligible Employee’s discriminating against any Employee
leave began. because such Employee has filed any
§ 826.130 Return to work. complaint or instituted or caused to be
(a) General rule. On return from Paid § 826.140 Recordkeeping. instituted any proceeding, including an
Sick Leave or Expanded Family and (a) An Employer is required to retain enforcement proceeding, under or
Medical Leave, an Employee has a right all documentation provided pursuant to related to the EPSLA, or has testified or
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to be restored to the same or an § 826.100 for four years, regardless is about to testify in any such
equivalent position in accordance with whether leave was granted or denied. If proceeding.
§§ 825.214 and 825.215 of this chapter. an Employee provided oral statements (b) Enforcement. (1) Failure to provide
(b) Restoration limitations. to support his or her request for Paid Paid Sick Leave. An Employer who fails
Notwithstanding paragraph (a) of this Sick Leave or Expanded Family and to provide its Employee Paid Sick Leave
section: Medical Leave, the Employer is required under the EPSLA is considered to have
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Federal Register / Vol. 85, No. 66 / Monday, April 6, 2020 / Rules and Regulations 19357
failed to pay the minimum wage as authority set forth in section 106(d) of section 102(d)(2)(B) of the FMLA, 29
required by section 6 of the FLSA, 29 the FMLA, 29 U.S.C. 2616(d). U.S.C. 2612(d)(2)(B), an Eligible
U.S.C. 206, and shall be subject to the Employee may elect to use, or an
enforcement provisions set forth in § 826.160 Effect on other laws, employer
practices, and collective bargaining Employer may require that an Eligible
sections 16 and 17 of the FLSA, 29 agreements. Employee use, provided or accrued
U.S.C. 216, 217. leave available to the Eligible Employee
(a) No diminishment of other rights or
(2) Discharge, discipline, or for the purpose set forth in § 826.20(b)
benefits. (1) An Employee’s entitlement
discrimination. An Employer who under the Employer’s policies, such as
to, or actual use of, Paid Sick Leave
discharges, disciplines, or discriminates vacation or personal leave or paid time
under the EPSLA is in addition to—and
against an Employee in the manner off, concurrently with Expanded Family
shall not in any way diminish, reduce,
described in subsection (a) is considered and Medical Leave.
or eliminate—any other right or benefit,
to have violated section 15(a)(3) of the
including regarding Paid Sick Leave, to (2) If an Eligible Employee elects, or
FLSA, 29 U.S.C. 215(a)(3), and shall be
which the Employee is entitled under an Employer requires, concurrent leave,
subject to the enforcement provisions
any of the following: the Employer must pay the Eligible
relevant to such violations set forth in
(i) Another Federal, State, or local Employee the full amount to which the
sections 16 and 17 of the FLSA, 29
law, except the FMLA as provided in Eligible Employee is entitled under the
U.S.C. 216, 217.
§ 826.70; Employer’s preexisting paid leave
§ 826.151 Prohibited acts and enforcement (ii) A collective bargaining agreement;
policy for the period of leave taken.
under the EFMLEA. or
(iii) An Employer policy that existed (d) No creation of requirements upon
(a) Prohibited acts. The prohibitions
against interference with the exercise of prior to April 1, 2020. end of employment. An Employer has
rights, discrimination, and interference (2) That an Employee already used no obligation to provide—and an
with proceedings or inquiries described any type of leave prior to April 1, 2020, Employee or former Employee has no
in the FMLA, 29 U.S.C. 2615, apply to for reasons related to COVID–19 or right or entitlement to receive—
Employers with respect to Eligible otherwise, shall not be grounds for his financial compensation or other
Employees taking, or attempting to take, or her Employer to deny him or her Paid reimbursement for unused Paid Sick
leave under the EFMLEA. Sick Leave and Expanded Family and Leave or Expanded Family and Medical
(b) Enforcement. An Employer who Medical Leave or for the Employer to Leave upon the Employee’s termination,
commits a prohibited act described in delay or postpone the Employee’s use of resignation, retirement, or any other
paragraph (a) of this section shall be Paid Sick Leave and Expanded Family separation from employment.
subject to the enforcement provisions and Medical Leave. The foregoing is
subject to the exception of FMLA leave (e) No creation of requirements upon
set forth in section 107 of the FMLA, 29 expiration. An Employer has no
U.S.C. 2617, and § 825.400 of this as provided in § 826.70. An Employer
shall permit an Employee to obligation to provide—and an Employee
chapter, except that an Eligible or former Employee has no right or
Employee may file a private action to immediately use the Paid Sick Leave
and Expanded Family and Medical entitlement to receive—financial
enforce the EFMLEA only if the compensation or other reimbursement
Employer is otherwise subject to the Leave to which he or she is entitled
under the EPSLA and the EFMLEA. for unused Paid Sick Leave or Expanded
FMLA in the absence of EFMLEA.
However, no Employer is obligated or Family and Medical Leave upon the
§ 826.152 Filing a complaint with the required to provide, and no Employee expiration of the FFCRA on December
Federal Government. has a right or entitlement to receive, any 31, 2020.
A complaint alleging any violation of retroactive reimbursement or financial (f) One time use. Any person is
the EPSLA and/or the EFMLEA may be compensation through Paid Sick Leave limited to a total of 80 hours Paid Sick
filed in person, by mail, or by or Expanded Family and Medical Leave Leave. An Employee who has taken all
telephone, with the Wage and Hour for any unpaid or partially paid leave such leave and then changes Employers
Division, U.S. Department of Labor, taken prior to April 1, 2020, even if such
is not entitled to additional Paid Sick
including at any local office of the Wage leave was taken for COVID–19-reated
Leave from his or her new Employer. An
and Hour Division. No particular form reasons.
(b) Sequencing of Paid Sick Leave. (1) Employee who has taken some, but
of complaint is required, except that a
An Employee may first use Paid Sick fewer than 80 hours of Paid Sick Leave,
complaint must be in writing and
Leave before using any other leave to and then changes Employers is entitled
should include a full statement of the
acts and/or omissions, with pertinent which he or she is entitled by any: only to the remaining portion of such
dates, that are believed to constitute the (i) Other Federal, State, or local law; leave from his or her new Employer and
violation. (ii) Collective bargaining agreement; only if his or her new Employer is
or covered by the Emergency Paid Sick
§ 826.153 Investigative authority of the (iii) Employer policy that existed Leave Act. Such an Employee’s Paid
Secretary. prior to April 1, 2020. Sick Leave would expire upon reaching
(a) Investigative authority under the (2) No Employer may require, coerce, 80 hours of Paid Sick Leave total,
EPSLA. For purposes of the EPSLA, the or unduly influence any Employee to regardless of the Employer providing it,
Secretary has the investigative authority first use any other paid leave to which or when the Employee reaches the
and subpoena authority set forth in the Employee is entitled before the number of hours of Paid Sick Leave to
sections 9 and 11 of the FLSA, 29 U.S.C. Employee uses Paid Sick Leave. Nor which he or she is entitled based on a
jbell on DSKJLSW7X2PROD with RULES3
209, 211. may an Employer require, coerce, or part-time schedule with the new
(b) Investigative authority under the unduly influence an Employee to use Employer.
EFMLEA. For purposes of EFMLEA, the any source or type of unpaid leave prior
[FR Doc. 2020–07237 Filed 4–2–20; 8:45 am]
Secretary has the investigative authority to taking Paid Sick Leave.
set forth in section 106(a) of the FMLA, (c) Sequencing of Expanded Family BILLING CODE 4510–27–P
29 U.S.C. 2616(a), and the subpoena and Medical Leave. (1) Consistent with
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