ALERT: Final regulations issued for FFCRA & CARES Act

The Department of Labor (DOL) issued final temporary regulations April 1 related to the paid leave requirements of the Families First Coronavirus Response Act (FFCRA), including clarifications addressed through the CARES Act.

These regulations are temporary as they are set to expire December 31, 2020. The regulations generally apply to employers with fewer than 500 employees and address key provisions related to the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) requirements within the FFCRA that were effective April 1. This alert highlights the latest changes or clarifications from the DOL.

Documentation requirements

The DOL regulations designate what documentation the employee must provide when requesting EPSLA or EFMLEA leave.

• Generally, employees must provide a signed statement containing the employee’s name; dates for which leave is requested; the COVID-19 qualifying reason for leave; and a statement representing that the employee is unable to work or telework because of the qualifying reason.
• Additional documentation is required, depending on the reason for leave, and is very limited in scope.
• Employers may not ask for medical documentation or certification when an employee requests leave under EPSLA or EFMLEA.
• For leave taken under FMLA for an employee’s own serious health condition or to care for the employee’s spouse, son, daughter or parent with a serious health condition related to COVID-19, the normal FMLA medical certification requirements still apply.

EPSLA

The FFCRA requires private employers and covered public employers to provide paid sick time to an employee who is unable to work or telework for the below reasons. The regulations provide clarification around certain aspects of the six reasons for leave.

1. The employee is subject to a federal, state or local quarantine/isolation order related to COVID-19.
   • Clarification provided: A quarantine/isolation order may include “quarantine, isolation, containment, shelter-in-place, or stay-at-home orders and situations where the government authority has “advised categories of citizens (e.g. of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine.”
2. The employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns.
   • Clarification provided: A health care provider may advise an employee to self-quarantine when the employee has or may have COVID-19 or is particularly vulnerable to COVID-19.
3. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
   • Clarification provided: Defines symptoms of fever, dry cough, shortness of breath, or others identified by the CDC.
4. The employee is caring for an individual who is under a governmental quarantine or healthcare provider isolation order.
   • Clarification provided: An “individual” may be an employee’s immediate family member, someone who regularly resides in the employee’s home, or a similar “relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined.”
5. The employee is caring for a son or daughter whose school or place of childcare is closed due to COVID-19 precautions.
   • Clarification provided for EPSLA and EFMLEA: Employees must certify that another suitable individual is not available to provide care for the child.
6. The employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services and other government officials.

Employers are required to provide information to employees regarding the benefits they are eligible to receive under the Act and may post the DOL’s notice to satisfy this requirement. Employers will need to establish procedures for employees requesting leave, including documentation requirements/forms, and tracking (e.g., new payroll codes) and recordkeeping requirements.