To count employees, an employer (meaning a W-2 employer with an Employer Identification Number (EIN) should add the numbers of its W-2 employees, temporary employees (who are working under a different employer’s EIN), leased employees (who are working under a different employer’s EIN), and any “shared” employees (that are working for two different employers, including the one counting). Absent the integrated employer test (see question 5 below), this sum is the number of relevant employees. The additional employees added to an employer’s total would be considered joint employees. In a joint-employer situation, both employers remain separately and jointly liable.  This means each individual employer has a separate headcount (with shared employees included in both totals).

Neither act defines when to measure the employee headcount, but, according to question 2 of the DOL’s FAQs, employers should do the count “at the time your employee’s leave is to be taken.”

Under the FMLA, a parent company and the smaller subsidiaries are considered integrated employers when, on balance, the following four factors suggest they should be integrated:

1. Whether the companies operate under common management
2. The amount of interrelation between operations
3. The amount of centralized control of labor operations (which is the most important factor)
   • Relevant considerations include whether both companies use the same handbooks, have common policies and procedures, and maintain common management of hiring/firing decisions and centralized human resources departments, etc.
4. The degree of common ownership and financial control

The DOL in its guidance has also adopted the integrated employer test for employee counts under EPSLA. (See question 2 of the DOL’s FAQs.)

1. The leave must be taken between April 1, 2020, and December 31, 2020. (Leave provided prior to April 1, 2020, will not count as FMLA leave.)
2. The employee must be unable to work or telework because of a need to take care for a minor child whose school or daycare is closed. An employee may also be unable to work because the normal paid care providers of his or her son or daughter (including adult children rendered incapable of self care because of a disability) are unavailable because of COVID-19. Question 40 of the DOL’s FAQs discuss this issue. (Note that the DOL made clear that they will use the FMLA’s definitions of son and daughter, which includes adult children who have a disability. But, the EFMLEA states specifically that leave for school and daycare closures are only for minor children. This implies that the DOL is referencing care providers who are unavailable due to the COVID-19 crisis. There is nothing in the FFCRA to help employers determine when an employee is needed to care for the child. Nothing in the FFCRA appears to grant the employer the right to question whether others are available to care for the child. If an employer offers telework, and the employee is able to perform telework, then the need for leave may be avoided, but even if an employer offers, an employee may be able to claim that he or she nevertheless cannot work, and instead needs to take the leave. (This issue is covered in questions 18 and 19 of the DOL’s FAQs). Of note, the DOL states that an employee is not entitled to telework; it is the employer’s option whether to make telework available. (See question 17 of the DOL’s FAQs.)
3. The employee must provide notice of the need for leave as soon as practicable. Failure to do so will cause a delay in when FMLA leave can start.
4. The need to care for the minor child must be because of a “declared” PHE related to COVID-19 that has caused:
   1. the child’s school (elementary school or secondary school) to be closed;
   2. the child’s place of care to be closed; or
   3. the child’s normal childcare provider (a person paid for providing childcare on a regular basis) to be unavailable.

The declaration of a PHE can be made by the applicable federal, state, or local authorities.

Employers may want to keep in mind that the other provisions of the FMLA are still in effect. A normally covered employer (that has greater than 50 employees in 20 or more calendar weeks) with normally defined eligible employees (who have worked for one year, worked for 1,250 hours in the year preceding leave, and worked at a worksite that has 50 or more employees within 75 miles) may need to analyze requests for leave related to COVID-19 under the normal provisions of the FMLA (i.e., an employee’s serious health condition; or an employee’s need to care for a first-degree relative with a serious health condition).

The act is silent on how far back an employer is to look to find the 30 days. Arguably, the 30 days would need to be the 30 days before the employee takes FMLA leave. However, the regulations under the FMLA took the normal eligibility language of “for at least 12 months by the employer with respect to whom leave is requested under Section 102” and interpreted it to mean 12 months within the past seven years. Absent some clarification from the DOL that it has a different interpretation of “at least 30 calendar days,” an employer may want to look back to see whether it employed the employee previously and add that to the 30-day total. Note too, time worked as a temporary employee for the covered employer would also count towards this already shortened total.

But, another section states that employers of “healthcare providers” or “emergency responders” may deny EFMLEA leave (or EPSLA leave for school closures and childcare unavailability, but not for the other types of EPSLA leave). In Section 3105, it states, “An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of the provisions in the amendments made [in] this Act.” Thus, employers may need to think through the definitions of “health care provider” and “emergency responder.”

Then, it expanded the definition considerably for purposes of deciding which employees could be denied EFMLEA and EPSLA leave for school closures and childcare unavailability. (Remember, the other reasons for taking EPSLA leave are NOT restricted for these persons). Those situations in which an employer may prohibit leave related to school closures, daycare closures, or care-provider unavailability as “healthcare providers” are as follows:

anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.

(See question 56 from the DOL’s FAQs.)

The guidance advises to use the above definition judiciously to ensure that those trying to limit the outbreak have the personnel they need to continue to function. The guidance also leaves room for expansion. If a governor of a state determined a particular job or professions is an emergency responder, then that profession can be added to the definition.

. . . an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of [COVID-19] patients, or whose services are otherwise needed to limit the spread of COVID-19. This [definition] includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

(See question 57 of the DOL’s FAQs.)

The guidance advises judicious use of this definition to ensure that those trying to limit the outbreak have the personnel they need to continue to function. The guidance also leaves room for expansion. If a governor of a state determined a particular job or profession is an emergency responder, then that profession can be added to the definition.

(1) providing the pay would result in business expenses exceeding available revenues, and would cause the small business to cease operating at a minimal capacity.

(2) permitting the absences would entail substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; OR

(3) result in there being insufficient workers available at the time and place needed to perform the labor or services provided by the employee, and these labor or services are needed for the small business to operate at a minimal capacity.

Of note, the exemption for employers with fewer than 50 employees applies only to leave related to school closures and childcare unavailability. It does not apply to other types of paid sick leave under the act.

After the first 10 days (really, Congress probably was thinking two weeks), EFMLEA leave for a PHE becomes paid (for up to another 10 weeks). An employer must pay the employee up to two-thirds of the employee’s regular rate of pay (an FLSA calculation, except this law uses a six-month average—see question 8 of the DOL’s FAQs) for EFMLEA leave. This amount is subject to both a ceiling and a floor. The ceiling is a cap of $200 per day and $10,000 total (the aggregate maximum of all paid FMLA leave under this provision). The floor is the applicable minimum wage (federal, state, and local). Employers with unions can use multiemployer collective bargaining agreement plans to pay out these amounts so long as the plans are amended to make the payments provided, and the employer funds the plan to pay for the leave.

According to that exception, employers with fewer than 25 employees may not be required to reinstate the employee under certain circumstances. In particular, an employer can deny reinstatement if its reason meets all the following elements:

1. The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions that affect employment and are caused by the public health emergency. (This exception is narrower than the general rule on reinstatement.)
2. The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced.
3. If the employee’s job is gone, and the employer cannot provide a substantially similar position, the employer must make reasonable efforts over a period of one year after the employee’s E-FMLA leave concludes to contact the employee if a substantially equivalent position becomes available.

Hopefully, the DOL’s guidance and/or regulations on this topic will reconcile the traditional concepts of reinstatement with this more restrictive provision for employers with fewer than 25 employees. (See question 43 of the DOL’s FAQs.)

The same is true for an employer with more than 500 employees who wants to give the functional equivalent of E-FMLA leave. Nothing stops a large employer from providing leave similar to E-FMLA leave, but it cannot count it against the employee’s leave entitlement, and it will not be eligible to receive the tax credits. (See question 34 of the DOL’s FAQs.)

Given: (1) the fact that the amendment to the FMLA has a sunset; and (2) the law is expanding the definition of covered employers (such that employers have between 1 and 50 employees), the DOL is likely to require notice but be practical about it. Any poster the DOL publishes will need to be posted, and an employer will need to, at a minimum, distribute the DOL poster to each employee saying it supplements their already existing policies (if they are already a covered employer).

In addition, the DOL may exempt small businesses with fewer than 50 employees in limited circumstances (namely, the DOL can relieve an employer from having to provide EPSLA leave for the school closures and childcare unavailability where these requirements would jeopardize the viability of a business). So, employers with fewer than 50 employees are awaiting DOL regulations that will explain when it can be relieved of the obligation to provide EFMLEA leave and EPSLA leave.

1. Quarantine/Isolation Order—when the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. Self-Quarantine—when the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. COVID-19 Symptoms—when the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. Care for Others—when the employee is caring for an “individual” who is subject to a quarantine or isolation order or whose health care provider has advised the individual to self-quarantine due to concerns related to COVID-19;
5. School/Childcare Closure—when the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions (this is the only one that appears to overlap with E-FMLA);
6. Similar Conditions—when the employee is experiencing a “substantially similar condition” as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Note that the act does not define “individual” or “substantially similar condition.” Also note, employees get only one tranche of leave. If an employee takes 80 hours of sick leave for one reason, they will not have it for another if a different reason (such as those mentioned above) occurs. (See question 9 of the DOL’s FAQs.)

Full-time employees are eligible for 80 hours of pay. They are the employees who are scheduled to work 40 hours or more per week. (See question 49 of the DOL’s FAQs.) For anyone else, an employer must attempt to populate their leave banks with paid leave in the number of hours equivalent to two weeks. To do this, employers should look back 6 months and determine the average number of hours the employee worked and was on leave. If the employee has not worked a sufficient time, the employer should look at what the expected number of hours were when the employee was hired. (See questions 8, 48, and 49 of the DOL’s FAQs.)

Of note, if the employee’s hours are reduced because of a lack of availability of work (for reasons other than the leave itself), then the new schedule will determine how many hours of paid leave an employee can take. In other words, an employee may not use paid sick leave except to cover hours scheduled to work. (See question 28 of the DOL’s FAQs.) For purposes of EPSLA leave, which is an hours bank, the hours are not adjusted if the schedule is reduced, but the employee can only use those hours for work actually scheduled.  Conversely, if an employee misses overtime work that he or she would have otherwise, their EPSLA leave hours bank will be reduced and the amount of pay for the hours missed must be provided. (See question 6 of the DOL’s FAQs.)

Employers that unlawfully discharge, discipline, or otherwise discriminate against an eligible employee under the act are subject to injunctive relief under the FLSA, including reinstatement, as well as damages and penalties for unpaid wages, an additional equal amount as liquidated damages, and attorneys’ fees and costs.