Tag Archives: paid sick leave

DOL: FFCRA Leave Can Be Taken Intermittently By Agreement Of The Employee And Employer (In Some Circumstances)

Contributed by Brian Wacker, April 2, 2020

The Department of Labor has issued Temporary Regulations on the Families First Coronavirus Response Act (FFCRA) to address an issue already causing employers fits – namely, can employees use paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) intermittently?  

According to the DOL: it depends. 

The employer and employee must agree to intermittent leave.

First and foremost, the regulations are clear that “one basic condition” applies to all employees who seek to take leave under the FFRCA: “they and their employer must agree.” Without such an agreement, leave cannot be taken intermittently. While there is no requirement of a written agreement, it is advisable to have one.  Because the DOL has said that in the absence of a written agreement to intermittent leave, “there must be a clear and mutual understanding between the parties.”  In addition, the agreement must also be certain as to the increments of time in which the leave is taken intermittently. 

If the employer and employee agree to intermittent leave, when is it permissible under the FFCRA?

Intermittent leave is not permissible in all situations. 

If the employer and employee agree that the employee may telework (e.g., working from home), the employee is permitted to take intermittent leave (paid leave and/or expanded family or medical leave) in any agreed increment of time. This regulation is drafted intentionally broad to give employers flexibility to balance the needs of the teleworking employee and the “needs of the employer’s business.”

However, if an employee is still working at the employer’s jobsite, intermittent leave can only be taken “in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite.” Therefore, the regulations allow an employer and employee reporting to a worksite to “agree that the employee may take paid sick leave or expanded family and medical leave intermittently solely to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19.” 

However, intermittent leave is prohibited for employees who report to an employer’s worksite – even if the employee and employer agree – if the leave it being taken for any of the following reasons:

  • because the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • because the employee is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis;
  • because the employee 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
  • because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

According to the Regulations, in these situations, intermittent leave is prohibited due to the “unacceptably high risk that the employee might spread COVID-19 to other employees when reporting to the employer’s worksite.”  So once an employee starts taking leave for any of these reasons, she must continue to take it until either the entire amount of provided leave is taken or until she no longer has a qualifying reason to taken leave.

Finally, the Regulations clarified that when permissible intermittent leave is agreed to by the employer and employee, “only the amount of leave actually taken may be counted towards the employees leave entitlements.” This means that if an employee returns from leave prior to expiration of their leave entitlement under the FFCRA, they are still entitled to use the remaining leave entitlement for a separate qualifying reason and are not otherwise prohibited from doing so by the Intermittent Leave regulations.

Prior to the issuing the regulations, the DOL issued guidance on these issues, which is consistent with the regulations, which can be found on the DOL website.

Does a “Shelter in Place” or “Stay at Home Order” Trigger Paid Leave under the FFCRA?

Contributed by John Hayes, March 31, 2020

Clock and cash

***Please see updated information on FFCRA regulations in our April 3, 2020 post.

A component of the recently passed Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 starting April 1. Additionally, many states and local governments have now mandated that non-essential businesses close and that its citizens stay at home, subject to certain exceptions, often referred to as Shelter in Place (SIP) or Stay at Home orders.

The question facing many employers now is whether these SIP orders trigger the paid leave requirements of the FFCRA.

The short answer is no.

On March 28, 2020 the U.S. Department of Labor (DOL) issued guidance to address, among other things, the FFCRA provisions related to paid sick leave or expanded medical leave, and whether employers are required to provide paid leave under its provisions if it is forced to close pursuant to SIP orders.  The specific questions that address the provisions for the closure of a worksite can be found on the DOL website and the relevant portions of the answers read as follows:

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

Bottom line: an employee is not eligible for the paid leave requirements of the FFCRA if their worksite closes down pursuant to an SIP order, or if it closes for any other reason, such as lack of business. However, employers should note that when they reopen and recall the affected employees to work, the recalled employees will be eligible for paid sick or family leave, if they meet the requirements under FFCRA. 

U.S. DOL Issues Guidance on the FFCRA “Small Employer” Exemption and “Viability” Definition

Contributed by Carlos Arévalo, March 30, 2020  

At the time of passage of the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) was tasked with issuing guidance on how a “small employer” might be exempt from providing paid sick leave and expanded FMLA benefits if doing so affected the business’s viability. The DOL has now issued guidance that addresses how this viability exemption can be met. Specifically, the DOL states that an employer, which includes religious or nonprofit organizations, with fewer than 50 employees (small business), is exempt from providing paid emergency sick leave and expanded FMLA paid leave pursuant to the FFCRA if doing so “would jeopardize the viability of the small business as a going concern” as determined by an authorized officer of the business. This determination is based on said officer finding that one of the three following conditions exists:

  • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and causing the small business to cease operating at a minimal capacity;  
  • The absence of employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

In sum, a small business may be exempted from FFCRA requirements if it can show that there is not enough revenue coming in to afford the expanded benefits, not enough skilled workers to do the specialized work critical to the business, or not enough available workers to do the work to keep the business going. 

It should be noted, however, that the DOL’s guidance on the small employer exemption also “encourages” employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.   Also, the DOL’s guidance may give the small business protection today, but time may change the analysis. 

While the initial say on the business’s viability is the employer’s call, employers will likely be scrutinized down the road. 

BOTTOM LINE:  Any business contemplating the “small employer” exemption to the FFCRA should seek advice and counsel from competent labor law counsel. 

The Impact of Local Minimum Wage and Paid Sick Leave Ordinances on the Transportation Industry

Contributed by Michael Wong, January 5, 2018

Over the past few years, cities, counties and local municipalities have been enacting laws and ordinances increasing the minimum wage and requiring paid sick leave for employees. While there have been growing pains with how these apply to normal hourly non-exempt employees and tipped servers, do these apply to motor carriers and employees who are truck drivers?  This can be the most frustrating legal response of all, “it depends.”

In most cases, minimum wage laws enacted by states follow the Fair Labor Standard Act (“FLSA”) and provide exemptions for motor carriers.  Indeed, under Section 12(b)(1) of the FLSA, employees whose duties, wholly or in part, affect the safety of operation of a motor vehicle and are involved in interstate commerce are exempt from being paid overtime. Whether a municipality’s minimum wage ordinance applies, depends on the language and rules of the ordinance. For example, the rules of the Cook County, Illinois minimum wage specifically state that a regulated motor carrier subject to subsection 3(d)(7) of the Illinois Minimum Wage Law is not a “Covered Employer” that would be required to pay covered employees the Chicago or Cook County minimum wage. Similarly, the rules of the City of Chicago minimum wage states that individuals employed for a motor carrier who are subject to the Department of Transportation regulation are not subject to the Chicago minimum wage.

However, paid sick leave laws and ordinances are different.  Neither the Cook County, Illinois earned sick leave ordinance or City of Chicago earned sick leave ordinance have the same exclusion for motor carriers or truck drivers.  While neither expressly states that motor carriers are required to provide paid sick leave to employees who are truck drivers, they also do not state that motor carriers or truck drivers are exempt.  Due to the plain language exempting motor carriers and truck drivers from the minimum wage ordinances, there is a very strong argument that motor carriers are required to provide their employees who are truck drivers with paid sick leave.

Indeed, this interpretation is not unusual within the growing trend of states, cities and local municipalities expanding employee rights – including those of truck drivers. Currently there are 8 states and 30 cities and municipalities that have paid sick leave laws which include:  Illinois (local), Washington (state and local), California (state and local), Arizona (state and local), Oregon (state and local), Minnesota (local), Vermont (state), Massachusetts (state and local), Pennsylvania (local), New Jersey (local), New York (local), Connecticut (state) and Washington, D.C. (local).

Bottom line, the different paid sick leave laws do not address or expressly exempt motor carriers or truck drivers from being subject to the law or ordinance. By not addressing or expressly exempting motor carriers and their employees, these laws are creating significant exposure for motor carriers that fail to make changes by providing employees who are truck drivers with the ability to earn paid sick leave or considering how those employees are being compensated. Certainly, with the patchwork of laws and nuances in each jurisdiction, it can be extremely frustrating and difficult to try and implement a globally compliant policy.  Thus, special attention must be taken when crafting such policies and review by experienced counsel should be part of the process.  Moreover, motor carriers utilizing truck drivers who are independent contractors or owner/operators should take particular pause to consider the increased liability from misclassification claims and the potential damages under the paid sick leave laws, in addition to any applicable minimum wage law or ordinance.

Paid Sick Leave: Cook County FAQs and Final Rules for Chicago

Contributed by Sara Zorich and Steven Jados, July 11, 2017

sick leave

Man sick in bed thinking about the work piling up on his desk

As part of what is certain to be an evolving area of the law, the Staff of the Cook County Commission on Human Rights has issued a set of Frequently Asked Questions (FAQs) related to the new Cook County Earned Sick Leave Ordinance (effective 7/1/17).  These FAQs (which may be updated from time to time), as well as the Cook County Earned Sick Leave Rules (“Rules”), are available for download from the Cook County Website.

In reviewing the Cook County FAQs, it is important to note their opening disclaimer, which essentially states that the FAQs are not legal advice, do not have the force of law, and do not supersede the text of the Cook County Earned Sick Leave Ordinance or its Rules. As such, discrepancies between the Rules and the FAQs should generally be resolved in favor of the Rules—and discrepancies between the text of the Ordinance, the Rules, and the FAQs should, of course, be resolved in favor of the Ordinance.

Additionally, per the FAQs, Cook County has said it will not enforce its ordinance in the City of Chicago against an employer that has complied with the Chicago Ordinance—but again, the FAQs do not carry the force of law, and will not necessarily prevent a plaintiff’s attorney from seeking to enforce the Cook County Ordinance in situations where both ordinances might apply, and an alleged failure to comply with the Cook County Ordinance has occurred since there are separate remedies under each ordinance.

In addition to the Rules implemented for the Cook County Ordinance, final rules under the Chicago Paid Sick Leave Ordinance are now available.

Because of the confusing and sometimes contradictory nature of these two ordinances, their rules, and the FAQs, we recommend consulting with experienced labor and employment counsel to work through any questions and complications that may arise in implementing workplace policies under these paid sick leave ordinances.

Federal Contractors: Paid Sick Leave Is Now A Reality

Contributed by Heather Bailey, October 21, 2016

On September 7, 2015, President Obama signed Executive Order 13706 requiring federal contractors to provide paid sick leave to their employees – up to 7 days annually. The leave is related to an employee’s own illness or injury, including, domestic violence, sexual assault and stalking absences, and for family care for same. The Department of Labor published its Final Rule just over a year later on September 30, 2016.

pay-overtimeHere are the key components:

  • The Final Rule applies to any new federal contracts solicited on or after January 1, 2017, replacement contracts (for those that are expiring) that are solicited on or after January 1, 2017, and contracts awarded outside of any solicitations on or after January 1, 2017.
  • The Final Rule covers procurement contracts for construction under the Davis-Bacon Act (contracts subject only to DB Related Acts — for example where a federal agency provides financial assistance or insurance but does not directly procure construction services — are excluded); service contracts covered by McNamara-O’Hara Service Contract Act; concessions contracts; and federal property or lands contracts, including contracts related to offering services to federal employees or the general public.
  • Good news for banks and financial institutions: unless you are otherwise covered by the above contracts, this Final Rule does not apply to you since “money” alone is not considered federal property.
  • Accrual = 1 hour of paid sick leave for every 30 hours the employee works on or related to a covered contract up to a maximum of 56 hours each year.
  • Employers who do not want to track accrual hours may give employees a bank of at least 56 hours of sick leave to use throughout the accrual year.
  • Employees must be notified in writing at the end of each pay period or month (whichever is shorter) of the amount of paid sick leave available to them.
  • Any accrued but unused leave must carry over year to year, but the Final Rule imposes no obligation to pay out the sick leave bank upon termination of employment (although state law may, so be sure to check state laws on this topic of payout of earned vacation, sick, PTO, etc. to ensure compliance).
  • Employees can take the leave in increments as low as 1 hour.
  • All rejections of sick leave requests must be in writing and state the reason for the denial. That reason cannot be no replacement worker was found or the operational needs of the company.
  • Certification can only be required for absences of 3 or more days and with prior notice if the employee needs to certify his/her return to work.
  • Here is your new poster.

The good news is the Family Medical Leave Act leave runs concurrently with this new paid sick leave and you can use your existing paid time off policies so long as the rights and benefits meet or exceed the requirements of the Final Rule.

The DOL’s Final Rule can be found here and Fact Sheet, here.

With the new and ever changing paid sick leave laws in various states, cities and locales, it is a good idea to reconcile them all (including CBAs) with these new requirements to ensure compliance so you don’t get hit with a penalty to pay damages or worse, debarment.

City of Chicago Is Teeing Up For Mandated Paid Sick Leave

Contributed by Heather Bailey, June 21, 2016

Paid time offOn June 17, 2016, the City of Chicago took one step closer into joining the ranks of requiring employers to give paid sick leave to their employees when the City Council’s Committee on Workforce Development and Audit unanimously voted on the Ordinance to do just that. If passed, Chicago will join 26 other cities (such as New York City, NY, Newark, NJ, and Philadelphia, PA), along with Washington, DC and five states (California, Connecticut, Massachusetts, Oregon and Vermont), who have also passed similar mandated paid sick leave for workers.

The Ordinance as currently proposed will be applicable to an employer of any size – this means all companies with employees in Chicago will be required to comply. Any employee who works at least 80 hours in a four month time span will qualify. Thus, this new Ordinance applies to part-time employees as well. Employees will accrue 1 hour of sick leave for every 40 hours they work – with a cap of 5 days paid leave per 12 month period.

The proposed Ordinance offers the following struggles for business owners:

  • Up to 20 hours (half of the allotted time can be carried over to the next year, with 40 hours of carry over to be used towards FMLA leave).
  • Employers could not require that employees must find their replacement to cover their shift while they use the paid sick leave.
  • Employees could use the time off for more than just being sick (i.e., closure of a school or business due to a public health emergency, domestic violence).
  • Companies without Human Resources Departments will have a harder time administering the leave and curbing use-abuse by employees.

Some of the Pros for business owners:

  • Any earned but unused sick leave would not need to be paid to employees leaving the company for any reason.
  • Employers could require a seven day notice for any foreseen absences such as a pre-planned doctor’s appointment.
  • Temporary and seasonal workers will be excluded since they won’t be able to meet the 6-month waiting period to use the time once it starts accruing.
  • Employers would get one year to implement due to the effective date of July 1, 2017, if passed.
  • Current collective bargaining agreements do not need to be modified to include paid sick leave or amend existing provisions, as well as, negotiations for future contracts could waive the paid sick leave requirement.
  • If an employee is absent 3 consecutive days, the employer could require a doctor’s note or other legitimate proof for the time off.

Stay tuned as the full City Council votes on the mandatory paid sick leave Ordinance tomorrow, Wednesday, June 22nd.