[Federal Register Volume 85, Number 70 (Friday, April 10, 2020)]
[Rules and Regulations]
[Pages 20156-20158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07711]
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 826
RIN 1235-AA35
Paid Leave Under the Families First Coronavirus Response Act;
Correction
AGENCY: Wage and Hour Division, Department of Labor.
ACTION: Temporary rule; correction and correcting amendment.
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SUMMARY: The Department of Labor published in the Federal Register on
April 6, 2020, a temporary rule to implement public health emergency
leave under Title I of the Family and Medical Leave Act (FMLA), and
emergency paid sick leave to assist working families facing public
health emergencies arising out of Coronavirus Disease 2019 (COVID-19)
global pandemic. The leave is created by a time-limited statutory
authority established under the Families First Coronavirus Response Act
(FFCRA), and is set to expire on December 31, 2020. The FFCRA and the
temporary rule do not affect the FMLA after December 31, 2020. Through
publication of this document, the Department corrects certain preamble
and regulatory text.
DATES: This rule is effective from April 10, 2020, through December 31,
2020. This rule became operational on April 1, 2020.
FOR FURTHER INFORMATION CONTACT: Amy DeBisschop, Director, Division of
Regulations, Legislation, and Interpretation, Wage and Hour Division,
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW,
Washington, DC 20210, telephone: (202) 693-0406 (this is not a toll-
free number).
SUPPLEMENTARY INFORMATION: The Department of Labor published a
temporary rule in the Federal Register on April 6, 2020 titled, Paid
Leave under the Families First Coronavirus Response Act. 85 FR 19326.
The temporary rule contained an incorrect calculation of hours worked
in a particular scenario (page 19329), a paragraph within the preamble
describing regulatory text that was erroneously included (page 19338),
along with incorrect cross references in
[[Page 20157]]
Sec. Sec. 826.20 (page 19349, in the third column), 826.22 (page
19350, second column), and 826.100(d) (page 19355, first column) of the
regulatory text. Additionally, the Department is inserting omitted
titles in Sec. 826.30(d) and (e) (page 19352, first column); inserting
a comma in Sec. 826.30(b)(3) to make a citation more accurate (page
19351, second column); correcting the reference to 5102(a)(2) in Sec.
826.30(c)(1)(iii) (page 19351, third column); and making two
corrections to the text of Sec. 826.50(d) (page 19353, second column).
The Department is capitalizing a defined term for consistency with the
remainder of the definition section (page 19348, third column).
Finally, the Department is correcting a date in Sec. 826.70(e) and
deleting Sec. 826.70(f) (page 19354, first and second columns) to be
consistent with the remainder of the regulations. This action makes the
necessary corrections in the regulatory text and preamble.
Corrections to Preamble
In rule FR Doc. 2020-07237, published on April 6, 2020 (85 FR
19326), make the following corrections:
1. On page 19329, in the first column, correct by revising ``7.5
hours'' to ``6.5 hours.''
2. On page 19338, in the second column, under ``III. Discussion''
part G is corrected by deleting the final paragraph under the heading
``G. Leave to Care for a Child Due to School or Place of Care Closure
or Child Care Unavailability--Intersection between the EFMLEA and the
FMLA''.
List of Subjects in 29 CFR Part 826
Wages.
For the reasons set out in the preamble, the Department of Labor
corrects 29 CFR part 826 by making the following correcting amendments:
PART 826--PAID LEAVE UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE
ACT
0
1. The authority citation for part 826 continues to read as follows:
Authority: Pub. L. 116-127 sections 3102(b) and 5111(3); Pub.
L. 116-136 section 3611(7).
Sec. 826.10 [Amended]
0
2. In Sec. 826.10(a), remove ``Subject to a quarantine or isolation
order'' and add in its place ``Subject to a Quarantine or Isolation
Order''.
0
3. In Sec. 826.20, revise paragraphs (a)(7) and (b) to read as
follows:
Sec. 826.20 Paid leave entitlements.
(a) * * *
(7) Caring for an individual. An Employee may take Paid Sick Leave
for the reason described in paragraph (a)(1)(iv) of this section if the
Employee is unable to perform work for his or her Employer and if the
individual depends on the Employee to care for him or her and is
either:
(i) Subject to a Quarantine or Isolation Order as described in
paragraph (a)(1)(i) of this section; or
(ii) Has been advised to self-quarantine by a health care provider
as described in paragraph (a)(1)(ii) of this section, because of a
belief that--
(A) The individual has COVID-19;
(B) The individual may have COVID-19 due to known exposure or
symptoms; or
(C) The individual is particularly vulnerable to COVID-19.
* * * * *
(b) Qualifying reason for Expanded Family and Medical Leave. An
Eligible Employee may take Expanded Family and Medical Leave because he
or she is unable to work due to a need to care for his or her Son or
Daughter whose School or Place of Care has been closed, or whose Child
Care Provider is unavailable, for reasons related to COVID-19. An
Eligible Employee has need to take Expanded Family and Medical Leave
for the purposes of this paragraph (b) only if no suitable person is
available to care for his or her Son or Daughter during the period of
such leave.
* * * * *
0
4. Revise Sec. 826.22 to read as follows:
Sec. 826.22 Amount of pay for Paid Sick Leave.
(a) Subject to paragraph (c) of this section, for each hour of Paid
Sick Leave taken by an Employee for qualifying reasons set forth in
Sec. 826.20(a)(1)(i) through (iii), the Employer shall pay the higher
of:
(1) The Employee's average regular rate as computed under Sec.
826.25;
(2) The Federal minimum wage to which the Employee is entitled; or
(3) Any State or local minimum wage to which the Employee is
entitled.
(b) Subject to paragraph (c) of this section, for each hour of Paid
Sick Leave taken by an Employee for qualifying reasons set forth in
Sec. 826.20(a)(1)(iv) through (vi), the Employer shall pay the
Employee two-thirds of the amount described in Sec. 826.24(a).
(c) The limitations on payments are as follows:
(1) In no event shall an Employer be required to pay more than $511
per day and $5,110 in the aggregate per Employee when an Employee takes
Paid Sick Leave for qualifying reasons set forth in Sec.
826.20(a)(1)(i) through (iii).
(2) In no event shall an Employer be required to pay more than $200
per day and $2,000 in the aggregate per Employee when an Employee takes
Paid Sick Leave for qualifying reasons set forth in Sec.
826.20(a)(1)(iv) through (vi).
0
5. In Sec. 826.30, revise paragraphs (b)(3) and (c)(1)(iii) and the
heading for paragraph (d) and add a heading for paragraph (e) to read
as follows:
Sec. 826.30 Employee eligibility for leave.
* * * * *
(b) * * *
(3) An Employee who has been employed by a covered Employer for at
least thirty calendar days is eligible for Expanded Family and Medical
Leave under the EFMLEA regardless of whether the Employee would
otherwise be eligible for leave under the FMLA. Thus, for example, an
Employee need not have been employed for 1,250 hours of service and
twelve months of employment as otherwise required under the FMLA, see
Sec. 825.110(a)(1) and (2) of this chapter, to be eligible for leave
under the EFMLEA.
(c) * * *
(1) * * *
(iii) The definition of ``health care provider'' contained in this
section applies only for the purpose of determining whether an Employer
may elect to exclude an Employee from taking leave under the EPSLA and/
or the EFMLEA, and does not otherwise apply for purposes of the FMLA or
section 5102(a)(2) of the EPSLA.
* * * * *
(d) Exclusion by OMB from EFMLEA. * * *
(e) Exclusion by OMB from EPSLA. * * *
* * * * *
0
6. Revise Sec. 826.50(d) to read as follows:
Sec. 826.50 Intermittent leave.
* * * * *
(d) Calculation of leave. If an Employee takes Paid Sick Leave or
Expanded Family and Medical Leave intermittently as the Employee and
Employer have agreed, only the amount of leave actually taken may be
counted toward the Employee's leave entitlements. For example, an
Employee who normally works forty hours in a workweek and only takes
three hours of leave each work day (for a weekly total of fifteen
hours) has only taken fifteen hours of the Employee's Paid Sick Leave
or 37.5% of a workweek of the
[[Page 20158]]
Employee's Expanded Family and Medical Leave entitlement.
0
7. In Sec. 826.70, revise the section heading and paragraph (e) and
remove paragraph (f) to read as follows:
Sec. 826.70 Leave to care for a child due to School or Place of Care
closure or child care unavailability--intersection of EFMLEA and the
FMLA.
* * * * *
(e) An Eligible Employee can take a maximum of twelve workweeks of
Expanded Family and Medical Leave during the period in which the leave
may be taken (April 1, 2020 to December 31, 2020) even if that period
spans two FMLA leave twelve-month periods. For example, if an
Employer's twelve-month period begins on July 1, and an Eligible
Employee took seven weeks of Expanded Family and Medical Leave in May
and June, 2020, the Eligible Employee could only take up to five
additional weeks of Expanded Family and Medical Leave between July 1
and December 31, 2020, even though the first seven weeks of Expanded
Family and Medical Leave fell in the prior twelve-month period.
0
8. Revise Sec. 826.100(d) to read as follows:
Sec. 826.100 Documentation of need for leave.
* * * * *
(d) To take Paid Sick Leave for a qualifying COVID-19 related
reason under Sec. 826.20(a)(1)(iv) an Employee must additionally
provide the Employer with either:
(1) The name of the government entity that issued the Quarantine or
Isolation Order to which the individual being care for is subject; or
(2) The name of the health care provider who advised the individual
being cared for to self-quarantine due to concerns related to COVID-19.
* * * * *
Signed at Washington, DC, this 8th day of April, 2020.
Cheryl M. Stanton,
Administrator, Wage and Hour Division.
[FR Doc. 2020-07711 Filed 4-8-20; 4:15 pm]
BILLING CODE 4510-27-P