U.S. Department of Labor issues guidance for emergency sick and family medical leave
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NOTE: This article is part of the coronavirus (COVID-19) resources provided to the nursery industry at no charge. To join the Oregon Association of Nurseries and support our efforts to support the industry, please go to www.oan.org/join. To view our other resources relating to coronavirus, which are updated daily, please visit www.oan.org/coronavirus.

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By Peter Hicks, Jordan Ramis PC

In early April, the Wage and Hour Division of the U.S. Department of Labor issued temporary amendments to the Code of Federal Regulations to implement the Families First Coronavirus Response Act (FFCRA). The federal regulations are routinely published to supplement federal statutes, in much the same way that Oregon Administrative Rules supplement Oregon statutes. 

Most significantly, the federal regulations clarify Emergency Paid Sick Leave for Shelter in Place orders, clarify the extent of the potential leaves available and the requirements that must be met to qualify for emergency paid sick leave and/or the Emergency Family Medical Leave Expansion Act (EFMLEA), and identify the documentation that can be requested to justify the leave. In addition, further guidance regarding potential exemptions for employers with fewer than 50 employees is provided.

Important takeaways from the new federal sick leave include:

  • Emergency paid sick leave may be available in some cases with a shelter in place. In short, if there is work available but for a government shutdown, the leave is available. However, if work is not available because customers cannot come to your business and work for your employees is therefore not available (such as would be the case for retail locations), then this leave is not available.
  • Leave for emergency paid sick leave reason (3) – experiencing COVID-19 related symptoms and seeking treatment – the leave is limited to the time the employee is unable to work because the employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19. 
  • The symptoms of COVID-19 justifying leave under the Families First act are listed as fever; dry cough; shortness of breath; or any other COVID-19 symptoms identified by the Centers for Disease Control.
  • For both emergency paid sick leave and family medical leave, if there is another “suitable caregiver” available to care for a son or daughter due to a school or childcare closure, you may be able to deny the leave. 
  • Intermittent leave is available under both the emergency paid sick and emergency family medical leave if both the employer and employee agree.
  • For both types of emergency leave, if the employee is able to telework, the employee may be ineligible for the leave. “Telework” is also broadly defined in the regulations.
  • The employee is required to provide documentation for both types of emergency leave. If the employee fails to provide the documentation listed below, or other documentation that would be required by the Internal Revenue Service for the employer to obtain the payroll tax credit, the employer may deny the leave.
  • With all leave requests, the employee must provide: (1) the employee’s name; (2) the dates for which leave is requested; (3) a qualifying reason for the leave; and (4) an oral or written statement that the employee is unable to work because of the qualified reason for the leave.
  • The employee is then required to provide additional documentation depending on the nature of the emergency paid sick leave requested:
  • For reason (1) — a federal, state or local quarantine or isolation order — the employee must provide the name of the government entity that issued the order.
  • For reason (2) or (4) — self-quarantine for the employee or employee’s family member based upon advice of a health care provider — the employee must provide the name of the health care provider.
  • For reason (5) — caring for a son or daughter due to school or childcare closure — the employee must provide the name of the son or daughter, the name of the school or childcare, and a representation that no other suitable person is available to care for the son or daughter.
  • Interestingly, the regulations do not provide any guidance with respect to what can be requested to document reason (3) — experiencing COVID-19 symptoms and seeking medical treatment.
  • Documentation required for emergency family medical leave is the same documentation as required for emergency paid sick leave reason (5), related to caring for a son or daughter.
  • Further details are provided regarding how employers with fewer than 50 employees must document any claims for exemptions from the Families First act. Such employers are instructed to simply document the need for the exemption and maintain any such documents in the event of an audit. This seems inherently risky, and any employers following this path should seek legal advice before doing so to reduce the chances that the exemption will be later disallowed should an audit find the documentation insufficient.

Responding to Families First act leave requests is complicated and errors can result in either: (1) wage and hour lawsuits from employees; or (2) disallowance of payroll tax credits by the IRS if the leave is paid when employee doesn’t qualify. 

Jordan Ramis PC can help walk you through leave requests and also has developed leave forms to document any leave. Feel free to reach out to Peter Hicks at 541-797-2079 to help you respond to any requests or obtain a leave request form.