COVID-19 Emergency Leave
Q&A for Higher Education HR
On March 18, the president signed into law H.R. 6201, the Families First Coronavirus Response Act (FFCRA). The bill requires all public institutions and private institutions with fewer than 500 employees to provide two types of paid leave to employees for issues related to the coronavirus crisis:
- Emergency Family and Medical Leave Expansion Act (EFMLEA)
- Emergency Paid Sick Leave Act (EPSLA)
CUPA-HR has various resources on these leave mandates on its Coronavirus COVID-19 Resources page.
On April 1, the Department of Labor’s (DOL) Wage and Hour Division (WHD) released a temporary rule issuing regulations on the paid-leave provisions in the FFCRA. Since the law’s passage, WHD has also issued and updated frequently asked questions (FAQs) from stakeholders on the paid-leave provisions, along with answers to help employers navigate the new law. Set forth below are some frequently asked questions we have received about the leave mandates, along with guidance from WHD’s temporary rule and FAQs.
Can you address how a college or university determines if it meets the fewer-than-500-employees threshold for the FFCRA leave mandates? Is there a definition of “employee” under the FFCRA?
The U.S. Department of Labor (DOL) has provided helpful information on the new leave mandates in FAQs on its website here. FAQ #2 specifically addresses which employees should be counted.
Do student workers count? DOL has not specifically exempt student workers; however, there’s no payroll tax imposed on student employees. CUPA-HR has asked DOL for greater clarification on this issue.
Do adjunct faculty count? What about adjunct faculty who are not currently teaching, but are still on payroll? Do part-time and temporary employees count? Will an FTE calculation be used to calculate the number of employees? See DOL’s FAQ answer to #2 here.
Do the FFCRA leave mandates apply to adjunct renewals, student employees, part-time employees, temporary employees, temporary employees hired and paid by third-party contractors?
This depends on the circumstances. See DOL’s FAQ answers to questions #13, #24-29, #38, and #43 here. DOL has not specifically exempted student workers; however, there’s no payroll tax imposed on student employees. CUPA-HR has asked DOL for greater clarification on this issue.
Are the FFCRA leave mandates in addition to the voluntary emergency leave a college or university may be providing in response to the crisis? Can these voluntary-leave policies be terminated before the federal benefits go into effect on April 1? After April 1?
With respect to the question on voluntarily-granted emergency leave policies, new benefits are to be considered in addition to existing leave policies. DOL’s FAQ answers to #11, #31-33, and #46 (found here) explain this.
DOL’s temporary rule states, “Section 826.160(a)(1) explains that an employee’s entitlement to, or actual use of, paid sick leave is not grounds for diminishment, reduction, or elimination of any other right or benefit to which the employee is entitled under any other federal, state, or local law, under any collective bargaining agreement, or under any employer policy that existed prior to April 1, 2020. See 29 U.S.C. 2651(b), 2652. Paid sick leave is in addition to, and not a substitute for, other sources of leave which the employee had already accrued, was already entitled to, or had already used, before the EPSLA became effective on April 1, 2020. Therefore, neither eligibility for, nor use of, paid sick leave may count against an employee’s balance or accrual of any other source or type of leave.” (p. 58)
According to the temporary rule, “The Department interprets “existing employer policy” in section 5107(1)(C) of the FFCRA to include a COVID-19 related offering of paid leave that the employer voluntarily issued prior to April 1, 2020. However, an employer may prospectively terminate such a voluntary additional paid leave offering as of April 1, 2020, or thereafter, provided that the employer had not already amended its leave policy to reflect the voluntary offering. This means the employer must pay employees for leave already taken under such an offering before it is terminated, but the employer need not continue the offering in light of the FFCRA taking effect.” (p. 59)
For medical centers and other health-care entities, especially public entities that are covered regardless of size, is DOL providing a definition of health-care provider employees whom employers can elect to exempt from the FFCRA leave mandate?
Refer to DOL’s FAQ answers to #56 and #57 here. The questions and answers provide guidance on who is considered a healthcare provider and who is considered an emergency responder.
In DOL’s temporary rule, the definition of an emergency responder includes “categories of employees who (1) interact with and aid individuals with physical or mental health issues, including those who are or may be suffering from COVID-19; (2) ensure the welfare and safety of our communities and of our Nation; (3) have specialized training relevant to emergency response; and (4) provide essential services relevant to the American people’s health and wellbeing. DOL recognizes that no list could be fully inclusive or account for the differing needs of specific communities. The definition therefore allows for the highest official of a state or territory to identify other categories of emergency responders, as necessary.” (p. 37)
I understand the FFCRA specifically excludes governmental entities from qualifying for the payroll tax credit provided for by the statute. Have you seen anything that would allow governmental entities, including public universities, to take advantage of the payroll tax credit?
Can a college or university furlough or lay off employees after April 1 if those employees are receiving FFCRA-required leave?
See DOL’s FAQ answers to #23-29 and #43 here.
In DOL’s temporary rule, they state, “Section 826.150(a) explains that, under the EPSLA, employers are prohibited from discharging, disciplining, or discriminating against any employee because the employee took paid sick leave, initiated a proceeding under or related to paid sick leave, or testified or is about to testify in such a proceeding.” (p. 56)
Are the new FFCRA provisions that expand FMLA leave subject to the overall combined leave entitlement of 12 weeks for all qualifying reasons for FMLA leave? For example, if we use a calendar year and someone has already taken 7 weeks of leave due to a surgery and returned to work but now the employee needs to go out to care for children because schools are closed, would they be eligible for only 5 weeks of the new paid leave?
See DOL’s FAQ answers to #44 and #45 here.
It is my understanding that FFCRA’s FMLA expansion can only be used by an employee who needs to stay home to care for a child due to a school closure and that it does not cover/apply if someone has symptoms or has been ordered to stay home. Is that correct?
Yes. See DOL’s guidance for employers here.
For any institution subject to the FFCRA, are contract employees (such as adjunct faculty) required to be provided with the expanded FMLA leave for the limited purpose of caring for a minor child past the contract end date? In other words, if our current adjuncts have contracts that expire mid-May, is the employer required to provide weeks of leave beyond the contract end date?
See DOL’s FAQ answers to #13, #24-29 and #43 here.
Do we have to give the FMLA rights and the usual documentation (less the certification from a doctor) to employees on the mandated leave? For employees who are married and have children, can these paid-time-off benefits and the FMLA protection be coordinated as is usually done with normal FMLA?
With respect to the first question, see DOL’s FAQ answers to #13 and #24-#29 here. With respect to the second question, the spousal coordination provisions of the FMLA do not extend to the new leave and are only for birth, adoption, and leave to care for a sick parent (see 29 USC 2612(f)). For additional information on the second question on married couples, see DOL’s FAQ answer to #69 here.
Where can we find the exact language that the FFCRA’s FMLA extensions apply to all public employers?
Section 3102 of the Families First Coronavirus Response Act (FFCRA) amends Section 101(4)(A)(i) of the FMLA (29 USC 2611(4)(A)(i)) by substituting “‘fewer than 500 employees’ for ‘50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.’” Section 101(4)(A)(i) of the FMLA applies to private industry. The section of the FMLA defining employer in the public sector context is Section 101(4)(A)(iii), which is not modified by the FFCRA. Section 101(4)(A)(iii) includes in the FMLA definition of employer “any ‘public agency,’ as defined in Section 203(x) of this title.” Section 203(x) refers to 29 USC 203(x), which is part of the Fair Labor Standards Act and reads: “Public Agency means the Government of the Unite States; the government of a State or political subdivision thereof; any agency of the United States including the United States Postal Service and Postal Regulatory Commission, a State, or a political subdivision of a State, or any interstate governmental agency.”
In addition to the above, see DOL’s FAQ answers to #52 and #53 here.
Is there any indication whether the 80-hour leave can be used intermittently?
See DOL’s FAQ answers to #20-22 here.
In DOL’s temporary rule, they state, “One basic condition applies to all employees who seek to take their paid sick leave or expanded family and medical intermittently—they and their employer must agree. Additionally, where an employer and employee agree that the latter may take paid sick leave or expanded family and medical leave intermittently, they also must agree on the increments of time in which leave may be taken, as explained in subsections (b)(1) and (c).” (p. 43)
The temporary rule continues by stating, “Subsection (b)(2) prohibits employees who report to an employer’s worksite from taking paid sick leave intermittently, notwithstanding any agreement between the employer and employee to the contrary, if the leave is taken because the employee: (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis; (4) is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (5) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.” (p. 44)
In DOL’s temporary rule, they say that “nothing in the Federal Emergency Paid Sick Leave Act of FFCRA should be construed as impacting an employee’s exempt status under the FLSA. For example, an employee’s use of intermittent leave combined with either paid sick leave or expanded family and medical leave should not be construed as undermining the employee’s salary basis.” (p. 20)
Does the "individual" being cared for have to be a family member, or can it be anyone? If it has to be a family member, what relationships count?
In DOL’s temporary rule, they state, “Section 826.20(a)(5) of the temporary rule explains that paid sick leave may not be taken to care for someone with whom the employee has no personal relationship. Rather, the individual being cared for must be an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.” (p. 17)
For additional guidance, see DOL’s FAQ answers to #63-66 here.
If the county you reside in issues a Stay-at-Home order, does that count as an isolation order under the Federal Emergency Paid Sick Leave?
See DOL’s FAQ answers to #23-29 here.
According DOL’s temporary rule, “Quarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility. Section 826.20(a)(2) of the FFCRA explains that an employee may take paid sick leave only if being subject to one of these orders prevents him or her from working or teleworking as described therein. The question is whether the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order. An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee. This is because the employee would be unable to work even if he or she were not required to comply with the quarantine or isolation order. For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.” (p. 14)
DOL explains in a footnote that the analysis holds even if the closure of the coffee shop was substantially caused by a stay-at-home order. If the stay-at-home order required customers to stay at home or the coffee shop to close, the reason for the cashier being unable to work would be because the customers and the coffee shop were subject to the order, not because the cashier himself was subject to the order. (p. 14)
If full-time employees work only 37.5 hours a week, do you have to pay 80 hours, or is that simply a cap?
See DOL’s FAQ answers to #5-10, #48 and #49 here.
DOL’s temporary rule defines a full-time employee as “an employee who is normally scheduled to work at least 40 hours each workweek. In order to determine whether or not an employee is a full-time employee for employees with no normal weekly schedule, employers should calculate the average hours per workweek over the six-months prior to the date on which leave is requested to determine if he or she is a full-time employee (works 40 hours). If the employee has been employed for less than six months, the average hours per workweek is computed over the entire period of employment.” (p. 22)
The temporary rule defines a part-time employee as “an employee who is normally scheduled to work fewer than 40 hours each workweek or, if the employee lacks a normal weekly schedule, who is scheduled to work, on average, fewer than 40 hours each workweek. A part-time employee who works a normal schedule is entitled to paid sick leave equal to the number of hours he or she is normally scheduled to work over a two-workweek period. A part-time employee whose weekly work schedule varies should be entitled to paid sick leave equal to fourteen times the average number of hours that the employee was scheduled to work per calendar day over the six-month period ending on the date on which the employee takes paid sick leave. A part-time employee with a varying schedule who has been employed for fewer than six months is entitled to fourteen times the expected number of hours the employee and employer agreed at the time of hiring that the employee would work, on average, each calendar day.” (p. 23)
According to the temporary rule, “The absolute upper limit of 80 hours of paid sick leave to which one could potentially be eligible is per person and not per job.” (p. 61)
Is there an argument that you can satisfy federal-law posting requirements by sending to all employees via email?
Yes, you can make the argument to satisfy federal-law posting requirements by sending an email to all employees. See DOL’S FAQ answer to #1 here.
What if an employee voluntarily travels to a high-risk area and must self-quarantine upon return? More specifically, if we have an employee that decides to take advantage of cheap airfare to NYC or Seattle for personal travel and then returns to our rural, less-exposed community, must we offer mandated leave, or can we require the employee to use regular sick leave given that the quarantine was effectively voluntary?
There does not appear to be an exemption for this issue if the worker cannot telework, but DOL’s temporary rule states that an employee who is self-quarantining and is able to telework may not take paid sick leave if “(a) his or her employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is self-quarantining; and (c) there are not extenuating circumstances, such as serious COVID-19 symptoms, that prevent the employee from performing that work.” (p. 15)
For the various leave provisions, when can you require the employee to concurrently use accrued leave and when not?
In some cases, you can allow employees to supplement their leave with accrued leave benefits. See DOL’s FAQ answers to #5, #9, #10, #11, #20, #21, and #28 here.
In DOL’s temporary rule, they states that “an employee may elect to use, or an employer may require an employee to use, accrued leave that under the employer’s policies would be available to the employee to care for a child, such as vacation or personal leave or paid time off concurrently with the expanded family and medical leave under the EFMLEA. Although Section 102(d)(2)(B) is read broader in the traditional FMLA context to include sick and medical leave, the Department notes that the FMLA is in part a medical leave, whereas the leave provided under FFCRA is solely for care for a family (e., a child whose school or place of care is closed or whose child care provider is unavailable). The Department believes that this flexibility carries out the purposes of FFCRA by allowing employees to receive full pay during the period for which they have preexisting accrued vacation or personal leave or paid time off, and allowing employers to require employees to take such leave and minimize employee absences.” (p. 25 and 26)
The temporary rule states, “an employee may choose to use paid sick leave prior to using any other type of paid leave to which he or she is entitled under any other Federal, State, or local law; collective bargaining agreement; or employer policy that existed prior to April 1, 2020.” (p. 60)