Seattle PSST; CDC Guidance for Essential Workers; More Details About FFCRA Leave
Seattle Employers: Do Not Require Doctors’ Notes for Sick Leave Absences
On April 8, 2020, the Seattle Office of Labor Standards announced an emergency rule prohibiting employers from requiring an employee to furnish a doctor’s note to verify an absence of over three days as paid sick time. This rule is consistent with CDC and King County Public Health guidelines that discourage unnecessarily burdening medical providers during this time. These sources note that medical practitioners are overwhelmed (or preparing to be so) with coronavirus testing and treatment, and that social distancing, including limiting visits to doctors’ offices, is the best tool presently available to reduce spread of the virus.
The temporary rule is effective immediately and will remain in place for 60 days (through June 7, 2020). After 60 days, the rules will automatically revert to the version in effect immediately before the emergency rule, unless it is revoked sooner or extended through a formal rulemaking process.
While the rule is in effect, employers may in the alternative:
- Choose not to request verification of the reason for absence;
- Accept the employee’s own statement;
- Accept documentation from other individuals like service providers, social workers, case managers or legal advocates stating that, to their knowledge, the employee’s use of paid sick leave is for a covered purpose; or
- Accept a healthcare provider verification if one is available to the employee and provided voluntarily, including a doctor’s note obtained through telemedicine.
CDC Encourages Critical Infrastructure Workers to Work After Exposure
The CDC issued revised guidance on April 8, 2020, modifying earlier recommendations about what to do if someone is exposed to a known or suspected case of coronavirus. Earlier guidance recommended that such an individual be excluded from the workplace for 14 days after the exposure. The new guidance, aimed at maintaining critical infrastructure through the crisis, recommends that an essential worker in this position may continue to work after exposure as long as they (a) wear a face covering (mask) for 14 days; and (b) are excused from work immediately if they become symptomatic.
The guidance defines a potential exposure as “being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19. The timeframe for having contact with an individual includes the period of time of 48 hours before the individual became symptomatic.”
Employers should note that while the CDC has changed its guidance, the Department of Labor’s FFCRA regulations remain unchanged. Thus, even though the CDC says that someone in this category can keep coming to work as long as they are asymptomatic, if that person receives medical advice to self-quarantine, that person would be eligible to take Emergency Paid Sick Leave (EPSL) for two weeks under qualifying reason #2: The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
Information for Employers and Employees Now Available in Multiple Languages
King County has made information sheets about COVID-19 management and response available in multiple languages. These include COVID-19 public health recommendations available in 21 languages and the guidance for essential businesses, now available in English, Chinese, Korean, Russian, Spanish, and Vietnamese.
More Details About Emergency Paid Sick Leave (EPSL) and Expanded FMLA (EFMLA) Leave
Last week, the Department of Labor issued regulations to implement the paid sick leave and expanded FMLA leave under the FFCRA.
Below are just some of the nuanced rules that employers should know. The full regulations can be found here. Our firm’s earlier summary of the law is here. Contact a member of our Employment Group for help applying these rules to your business or determining your rights if your employer is not granting you requested leave.
Who can take leave, and under what circumstances?
- Definition of caregiver and place of care. Child care leave is not limited to care for kids whose schools are closed. It includes care for any child whose usual “caregiver” is unavailable due to COVID-19, including a nanny, babysitter or a family member or friend who is not paid for their caregiving. The leave is also available if childcare programs such as summer camps are cancelled, which is a point of growing importance as June approaches and some organizations have already announced summer camp cancellations. (29 CFR 826.10(a)).
- At-risk workers. The second reason for paid sick leave is when “an employee is unable to work because he or she has been advised by a health care provider, to self-quarantine for a COVID-19 reason.” The regulations explain that the health care provider’s recommendation may be based on the provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. An employee cannot qualify for leave by self-identifying as at-risk, but if a medical provider recommends they isolate, that employee would qualify for EPSL even though they have no symptoms and have not been exposed to the virus. (29 CFR 826.20(a)(3)).
- Seeking medical diagnosis. The third reason for paid sick leave is that the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis. An employee may not take paid sick leave to self-quarantine without seeking medical diagnosis. If the employee is able to telework during a self-quarantine while awaiting test results, they may not take paid sick leave. (29 CFR 826.10).
- Rehired employees. Unlike regular FMLA, which requires a work history of at least 12 months with an employer, an employee is eligible for EFMLA if they are employed by the employer for at least 30 calendar days. The 30 days do not need to be consecutive. If an employee was laid off, furloughed or otherwise terminated on or after March 1, 2020 and rehired on or before December 31, 2020, the employee is eligible for EFMLA if the employee was on the employer’s payroll for at least 30 of the 60 calendar days before the employee’s layoff or termination. (29 CFR 826.30).
Does the governor’s Stay-Home-Stay-Safe Order count as a “quarantine or isolation order”? Can you take EPSL or EFMLA if your workplace is closed because of the governor’s order?
It’s the million-dollar question that so many employers and employees have been asking. The short answer is that even though Gov. Inslee’s order is considered a “quarantine or isolation order,” an employee only qualifies for the paid leave if the order is the immediate cause of the employee being unable to work. If a person’s workplace is closed, or their shift has been cancelled, as a result of the stay-at-home order, they are not eligible for the leave. They can only qualify for the leave if they are scheduled for a shift but cannot report to or perform that work for one of the qualifying reasons in the statute.
Many employers and employees alike are frustrated by this aspect of the regulation and DOL’s guidance. The DOL emphasizes that a worker who has lost work as a result of company closure or hours reductions, whether imposed by the business voluntarily or as a result of the governor’s order, may apply for income replacement in the form of unemployment insurance benefits.
What does an employee need to do to request leave?
An employer may require an employee to follow “reasonable notice procedures” of the need for leave, which will generally permit an employer to require compliance with the employer’s usual and customary procedural requirements for leave requests. However, employers should bear in mind the additional rules: (29 CFR 826.90 and 826.100).
- Employers may not require advance requests for leave; a request is timely if made after the first workday or portion thereof that an employee takes leave.
- An employer may accept the employee’s oral notice and information related to the need for leave. In other words, written notice may not be required.
- Generally, employers should allow notice to be delivered by the employee’s spokesperson if the employee is unable to notify the employer personally. A spokesperson could be the employee’s spouse, adult family member or another responsible party.
- A summary of the specific information required to document a need for leave and a downloadable form for recording this information is available in our firm’s earlier post.
- Before an employer may deny a leave request for lack of notice, the employer must notify the employee of their failure to give notice and give them a chance to provide the required documentation to justify the leave.
How do you qualify for the small business exemption from EFMLA?
The small business exemption only exempts an eligible employer from paying employees for leave taken under FFCRA section 5102(a)(5) — leave taken for childcare reasons. Leave taken for all other reasons must still be paid, even by a small employer.
A small business can claim the exemption if an authorized officer of the business determined one of the following circumstances exists. The employer must document the determination has been made and keep that documentation in company records in the event of an IRS audit in the future. Documentation should not be sent to the IRS. (29 CFR 826.40)
- (i) The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5)of the EPSLA would result in the small business’ expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- (ii) The absence of the employee or employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
- (iii) There are not sufficient workers who are able, willing, qualified, and available at the time and place needed to perform the labor or services provided by the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA and these labor or services are needed for the small business to operate at a minimal capacity.
How do the new federal leaves overlap with existing company-provided leave?
- An employer may allow or may require an employee to supplement EPSL or EFMLA with accrued vacation, sick leave or PTO under existing company policies with that leave running concurrently with the EPSL or EFMLA. In such cases, the employee must receive the full amount of the benefit to which they are entitled under the company policy.
- But an employer may not require, coerce or unduly influence an employee to use accrued company-provided leave or any other paid leave to which the employee is entitled (such as Washington Paid Family Medical Leave or Short Term Disability leave) before utilizing either of the new federal leaves. (29 CFR 826.160).
What is the rate of pay for EPSL and EFMLA? (29 CFR 826.24 and 826.25)
- For EPSL taken for reasons #1-3, an employee is entitled to the greater of (a) their regular rate of pay (as calculated under the FLSA); or (b) the applicable federal, state, or local minimum wage, up to a maximum of $511/day.
- For EPSL taken for reasons #4-6 or for EFMLA, an employee is entitled to two-thirds that amount, up to a maximum of $200/day.
- For an employee who does not have a regular work schedule, the daily pay is calculated based on “the average number of hours the employee was scheduled per day over the six month period ending on the date on which the employee takes leave,” including any leave hours the employee took during that six month period. If the employee has worked for fewer than six months, the number of hours is calculated as the number of hours that the employee and the employer agreed at the time of hiring that the employee would be expected to work, on average, each workday or, in the absence of any such agreement, ‘‘the average number of hours per workday that the employee was scheduled to work over the entire period of employment, including hours for which the employee took leave of any type.”
- For an employee who is paid with commissions, tips, and piece rates, incorporate the commissions, tips, and piece rates into the “regular rate” to the same extent that they are included in the calculation of the regular rate under the FLSA, as directed by 29 CFR parts 531.60 and 778.