Washington D.C.
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Deputy Assistant Secretary for Information and Technology
U.S. Department of Veterans Affairs
Hillsboro, Texas
Damon B. Ford
Classification Appeals and FLSA Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
05/16/2023
Date
Finality of Decision
As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA). There is no right of further administrative appeal. This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710). The claimant has the right to bring an action in an appropriate Federal court if dissatisfied with the decision.
The claimant’s employing agency is required to grant her request in part for paid sick leave under the Emergency Paid Sick Leave Act and to restore her sick leave balance in accordance with instructions in this decision. If she believes the agency fails to properly do so, she may file a new FLSA claim with this office. Compliance action on this decision must be completed within 60 days of the date of this decision as provided for in 5 CFR 551.708(c)(1). The servicing human resources office must submit a compliance report showing the actions taken within 30 days of the compliance action. The report must be submitted to OPM, Merit System Accountability and Compliance, Agency Compliance and Evaluation, Washington, DC, office.
Introduction
On February 8, 2021, OPM received an Emergency Paid Sick Leave Act (EPSLA) (see division E of the Families First Coronavirus Response Act (“FFCRA”, H.R. 6201, Public Law 116-127, March 18, 2020); the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”, H.R. 748, Public Law 116-136, March 27, 2020)) paid sick leave claim from a Budget Analyst, GS-0560-13, employed with the Demand Management Division, Deputy Assistant Secretary for Information and Technology, U.S. Department of Veterans Affairs (VA), in Hillsboro, Texas. The claimant specifically seeks to “reverse [her] personal Sick Leave incorrectly submitted by the timekeeper during [her] positive [Coronavirus Disease 2019 (COVID-19)] diagnosis and quarantine for the period 9/22/20-10/1/20 for a total of 48 hours and use EPSLA or COVID-19: lv-Excused Absence, DX1-Quarantine/Isolation Order-COVID-19.” Section 5105 of the FFCRA provides that employers (such as Federal agencies) who violate the EPSLA paid sick leave provisions shall be considered to have failed to pay minimum wages in violation of the FLSA (section 206 of title 29, United States Code (U.S.C.)). We received the agency administrative report on November 12, 2021, and at our request additional information from the claimant on February 24 and 28, 2023. We have accepted and decided this claim under section 4(f) of the FLSA as amended, codified at 29 U.S.C. 204(f). After carefully reviewing all information of record provided by the claimant and her agency, the claim for EPSLA paid sick leave is granted in part for the reasons discussed below.
Nature of the claim
The claimant asserts she is entitled to paid sick leave under the EPSLA or to COVID-19 excused absence during her absence from work due to COVID-19.[1] The record shows that on September 22, 2020, she was seen by a physician and tested for COVID-19. On the same day, she received the results showing she tested positive for the disease. On a September 23, 2020, note, her physician said she would be able to return to work on October 7, 2020. The claimant returned to work earlier than the date specified, as the timesheets provided by the agency show she resumed work duties on September 30, 2020, when she teleworked for five hours but was charged four hours of sick leave.
The claimant’s timesheets show her personal sick leave covered the majority of her absence from September 22, 2020, to October 1, 2020. Specifically, they show:
September 22, 2020-5 hours sick leave and 4 hours of telework
September 23, 2020-9 hours sick leave
September 24, 2020-9 hours sick leave
September 25, 2020-8 hours sick leave
September 28, 2020-9 hours sick leave
September 29, 2020-9 hours sick leave
September 30, 2020-4 hours sick leave and 5 hours of telework
October 1, 2020-9 hours COVID-19 excused absence
The claimant states she was “unable to work 9/22/20-10/1/20 due to COVID related illness.” She further states her personal sick leave was charged because, at the time, leave requests were submitted by agency officials on her behalf and without her knowledge. Upon her return to work on October 5, 2020, the claimant states she requested “to use COVID leave (emergency paid sick leave) as noted on the OPM site instead of [her] personal leave” due to her COVID-19 diagnosis. However, the agency denied her request to use EPSLA paid sick leave to cover her absence from work due to COVID-19. As part of her claim, she submitted messages concerning her request to use EPSLA paid sick leave between her and her supervisor, who in an October 8, 2020, response states, “I checked with the time keeper on your leave. She stated we have to keep it as is since you’re on a telework agreement.” In addition, in a December 3, 2020, email, an agency official explains its denial of her request, stating, “OPM guidelines…exclude the diagnosis of Covid 19 as a qualifying reason for EPSLA under FFCRA, as [the claimant was] diagnosed with Covid 19, [EPSLA] leave is denied.”
Evaluation of the claim
The EPSLA provides employees with up to two weeks (up to 80 hours) of paid sick leave in specified circumstances related to COVID-19 – unless exempted. Depending on the circumstances, the sick leave is generally paid at the FLSA-based regular rate of pay for an employee or two-thirds of that rate subject to statutory limitations on daily and aggregate cash value of paid leave. In general, an employing agency must allow an employee to use EPSLA paid sick leave during an absence from employment when the employee is unable to work (including telework) due to a need for leave in a qualifying circumstance. The employee has the right to use EPSLA paid sick leave before using other paid leave available to the employee, and an employing agency may not interfere with this right.
To determine whether the claimant qualified to use EPSLA paid sick leave benefits, we considered the eligibility and other requirements in the FFCRA; U.S. Department of Labor’s (DOL) temporary rule implementing EPSLA in 29 CFR Part 826 (85 Fed. Reg. 19326, April 6, 2020); and fact sheets and other guidance issued by DOL’s Wage and Hour Division and OPM.
Employee Eligibility
EPSLA applies to all Federal civil service employees in the executive, legislative, and judicial branches of the U.S. Government (unless they are exempted as allowed under the law, e.g., “health care provider” or “emergency responder”). There is no minimum service requirement. As a full-time GS-0560, Budget Analyst with the VA, the claimant meets eligibility requirements for paid sick leave under the EPSLA.
Covered Time Period
EPSLA paid sick leave is available for use during the period from April 1, 2020, through December 31, 2020. The claimant is seeking paid sick leave to cover her absence from work for September 22, 2020, to October 1, 2020. Thus, the claim for EPSLA leave is within the timeframe for which EPSLA paid sick leave was made available to employees who met the conditions for taking it.
Qualifying Circumstances
Subject to certain conditions and limitations, an employing agency must provide to each employee EPSLA paid sick leave to the extent that the employee is unable to work (including telework) due to a need for leave because of one of the following circumstances:[2]
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
The claimant believes she qualifies for EPSLA because she tested positive for COVID-19. When requesting EPSLA, she did not identify a specific qualifying COVID-19 related reason for the leave as required by 29 CFR 826.100(a)(3) but instead stated the qualifying COVID-19 related reason for the leave was “COVID-19 positive diagnosis.” In response to requesting EPSLA under circumstance (1), the claimant however states “not applicable.” The agency denied the claimant’s request to use EPSLA paid sick leave, stating her situation fails to meet any of the qualifying circumstances provided for by the EPSLA. In a December 2, 2020, email, her organization’s timekeeper explains, “Once the employee was diagnosed with COVID, then her accrued sick leave must be used.” In addition, the agency asserts that because the claimant is on a telework agreement, EPSLA paid sick leave is not available to her.
We reviewed the claimant’s situation as a telework-eligible employee under qualifying circumstances (2) and (3). To qualify for EPSLA paid sick leave under circumstances (2) and (3), a telework employee must be unable to work due to extenuating circumstances such as serious COVID-19 symptoms. Specifically telework employees may not take EPSLA paid sick leave if the employee had work to be performed, the employing agency allowed the employee to work from home, and there were no extenuating circumstances, such as serious COVID-19 symptoms, that prevented the employee from performing work.
We considered the following explanation regarding qualifying circumstance (2) found in the supplementary information of the temporary EPSLA rule (85 Fed. Reg. 19326, 19329):
The second reason for paid sick leave applies where an employee is unable to work because he or she has been advised by a health care provider, as defined in 29 CFR 825.102, to self-quarantine for a COVID-19 reason. Section 826.20(a)(3) explains that the advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. And, self-quarantining must prevent the employee from working. An employee who is self-quarantining is able to telework, and therefore may not take paid sick leave for this reason, 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 no extenuating circumstances, such as serious COVID-19 symptoms, that prevent the employee from performing that work.
The supplementary information of the temporary EPSLA rule further states regarding qualifying circumstance (3):
The third reason for paid sick leave applies where an employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis. Section 826.20(a)(4) explains that symptoms that could trigger this are: Fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the U.S. Center for Disease Control and Prevention (CDC). Additionally, paid sick leave taken for this reason must be limited to the time the employee is unable to work because he or she is taking affirmative steps to obtain a medical diagnosis. Thus, an employee experiencing COVID-19 symptoms may take paid sick leave, for instance, for time spent making, waiting for, or attending an appointment for a test for COVID-19. However, the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis. An employee who is waiting for the results of a test is able to telework, and therefore 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 waiting; and (c) there are no extenuating circumstances, such as serious COVID-19 symptoms, that may prevent the employee from performing that work. An employee may continue to take leave while experiencing any of the symptoms specified at § 826.20(a)(4), however; or may continue to take leave after testing positive for COVID–19, regardless of symptoms experienced, provided that the health care provider advises the employee to self-quarantine.
After careful consideration, we disagree with the agency’s determination that the claimant’s situation fails to meet the qualifying circumstances provided for by the EPSLA. Initially, the claimant’s situation met circumstance (3), for employees unable to work because they are experiencing COVID-19 symptoms and seeking a medical diagnosis. Under temporary EPSLA regulation in 29 CFR 826.20(a)(4), when seeking a medical diagnosis for COVID-19, the employee must experience any of the following symptoms: fever, dry cough, shortness of breath, or other COVID-19 symptoms identified by the CDC. We requested additional information from the claimant regarding circumstances prior to her testing for COVID-19. In response, she explains in a February 28, 2023, email to OPM that, on September 22, 2020, her primary care physician ordered the COVID-19 test because she was experiencing influenza-like symptoms (e.g., fever, cough, and shortness of breath) in addition to having been exposed to a COVID-19-positive individual. Because she was experiencing COVID-19 symptoms and sought a diagnosis on September 22, 2020, the claimant’s five-hour absence on that day meets circumstance (3), which is limited to the time an employee is unable to work because he or she is taking steps (i.e., by making, waiting for, or attending an appointment for a test) towards obtaining a diagnosis.
After she received the positive COVID-19 test result and diagnosis, the claimant’s situation shifted from meeting circumstance (3) to circumstance (2), which is intended to provide EPSLA paid sick leave for an employee unable to work because he or she has been advised by a health care provider to self-quarantine due to COVID-19 related concerns. In her February 2023 email to OPM, the claimant explains that after she tested positive for COVID-19, the County Medical Director and her primary care physician contacted her to advise her to self-quarantine and to provide care instructions. Because she was directed to isolate and quarantine to prevent the further spread of the virus, we find the claimant’s situation consistent with circumstance (2). As previously noted, circumstance (2) excludes telework employees from taking EPSLA paid sick leave if the employee had work to be performed, the agency allowed the employee to telework, and there were no extenuating circumstances, such as serious COVID-19 symptoms, that prevented the employee from performing work. The record shows the claimant was physically unable to work due to COVID-19 symptoms. In her February 2023 email to OPM, the claimant describes the symptoms she experienced, stating that the “severity of [her] COVID symptoms…prevented [her] from teleworking during that timeframe.” In light of the additional information provided by her in response to our request regarding the symptoms she was experiencing during that time, we conclude the period of the claimant’s absence from work, from receipt of diagnosis until subsequent resumption of work duties, meets circumstance (2).
Hours of Leave that May Be Credited
The maximum amount of EPSLA paid sick leave that may be credited for any employee is 80 hours. This is a per employee limit. The claimant’s request falls below the 80-hour limit allowable per employee.
Documentation
An employee is required to provide the employing agency with documentation containing certain information to support the taking of EPSLA paid sick leave as soon as practicable. As specified by 29 CFR 826.100, information required includes (1) the employee’s name; (2) dates for which leave is requested; (3) qualifying COVID-19 related reason for the leave; and (4) oral or written statement that the employee is unable to work because of the qualifying COVID-19 related reason for the leave. To specifically take EPSLA paid sick leave for qualifying circumstance (2), an employee must also provide the employing agency with the name of the health care provider who advised the employee to self-quarantine due to concerns related to COVID-19. After careful review of the record, we conclude that the claimant meets all documentation requirements to support the granting of EPSLA paid sick leave.
EPSLA paid sick leave is used in the same hourly increments (hours and specified fractions of an hour) as regular paid leave. Furthermore, EPSLA paid sick leave must be taken in full-day increments as long as the employee has enough EPSLA paid sick leave remaining to cover a full day, unless an employee is allowed to use the paid sick leave intermittently (i.e., in separate periods of time rather than one continuous period). The VA’s COVID-19 EPSLA & EFMLEA Policy and Procedures dated April 23, 2020, allows telework employees to receive intermittent EPSLA paid sick leave in increments of less than a full day upon agreement of the supervisor. With the exception of September 22, 2020 (when the claimant was allowed to telework for four hours and charged five hours of sick leave), and September 30, 2020 (when she was allowed to telework for five hours and charged four hours of sick leave), her personal sick leave was used to cover the entire eight- or nine-hour day for the rest of the claim period specified (i.e., 44 hours of sick leave charged for September 23-29, 2020). When certain conditions are met, an employee may take EPSLA paid sick leave intermittently if the employing agency and the employee agree to it. 29 CFR 826.50. As previously discussed, the claimant’s five hour absence on September 22, 2020, met circumstance (3), while her four hour absence on September 30, 2020, met circumstance (2) to qualify her for EPSLA paid sick leave. However, the record shows no evidence an agreement existed between VA and the claimant allowing her to use EPSLA paid sick leave intermittently on the specified days. At its discretion, the VA may grant the nine hours of EPSLA paid sick leave to cover the claimant’s absences on September 22 and 30, 2020.
Payment for Leave
For qualifying circumstances (2) and (3), the EPSLA paid sick leave is paid at an hourly rate equal to an employee’s average FLSA-based hourly regular rate using methods as determined by 29 U.S.C. 207(e) and 29 CFR parts 531 and 778. See section F of OPM’s Summary of Statutory and Regulatory Requirements in Connection with the EPSLA for payment instructions. The pay received by an employee for EPSLA paid sick leave may not exceed the following daily and aggregate limitations: $511 per day and $5,110 in the aggregate for one or more of the qualifying circumstances (2) or (3). The maximum pay the claimant could receive for EPSLA paid sick leave must not exceed the established $511 daily and $5,110 aggregate limitations.
Decision
The employing agency improperly denied the claimant’s request to use EPSLA paid sick leave for her absence due to COVID-19 from September 23-29, 2020. For the 44 hours of sick leave charged for September 23-29, 2020, the agency is required to change her title 5 sick leave to paid sick leave under EPSLA and restore her title 5 sick leave in accordance with the following instructions.
For any period of title 5 sick leave for which EPSLA paid sick leave is granted, the agency must cancel and restore the claimant’s title 5 sick leave, place the employee in a leave without pay status, and make EPSLA payment for the affected periods. Cancelling title 5 sick leave will create an overpayment debt owed by the employee to the employing agency, and the overpayment debt will be offset by the amount of pay that is payable for EPSLA leave for the same period of time. EPSLA sick leave for qualifying circumstances (2) and (3) is paid at an hourly rate equal to the employee’s FLSA-based average hourly regular rate (subject to statutory limitations on daily and aggregate cash value of paid leave), and that rate may be less than the employee’s current rate of basic pay. Because the hourly rate at which EPSLA sick leave is paid may be less than the hourly rate at which title 5 sick leave is paid, the conversion of title 5 sick leave to EPSLA sick leave may result in there being a remaining overpayment debt owed by the employee.
We also note that employees are prohibited from using title 5 paid sick leave to cover the difference when the EPSLA sick leave amount payable is less than the amount payable for title 5 paid sick leave. The VA has also issued instructions in its Office of the Chief Human Capital Officer Bulletin, Subject: [FFCRA]-Version 4, dated April 23, 2020, which states:
EPSLA paid sick leave is in addition to accrued paid leave, and employees may not be required to use accrued paid leave before EPSLA paid sick leave. However, an employee may request to use accrued paid leave before using EPSLA paid sick leave. EPSLA paid sick leave may not be used during any period when an employee already is taking other accrued paid leave under Title 5, [U.S.C.]. (There is no authority under Title 5 to provide paid leave for hours in which the employee is receiving compensation. There also is no authority under Title 5 to provide a partial leave payment for the same hour for which an employee is receiving EPSLA paid sick leave at the two-thirds rate.)
[1]The appellant also requests excused absence (“administrative leave”) for COVID-19, which is at the discretion of the employing agency. Because we granted the claimant’s request to use EPSLA for reasons discussed later in the decision, we will not address the agency’s discretion to grant excused absence.
[2] The EPSLA describes six qualifying circumstances. Because circumstances (4), (5), and (6) describe conditions unrelated to the claimant’s situation, we will not address those circumstances in this decision.