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New Guidance from the DOL on FFCRA Leave, Including Exemptions for Small Businesses and Exclusions f New Guidance from the DOL on FFCRA Leave, Including Exemptions for Small Businesses and Exclusions f

New Guidance from the DOL on FFCRA Leave, Including Exemptions for Small Businesses and Exclusions for Health Care Providers

This article reflected the available information as of its date of publication. As new laws or regulations are passed or the DOL makes changes to its Q&As, this information may no longer be accurate. Please visit our COVID-19 Resource Center for the most up-to-date information.

On March 28, 2020, the Department of Labor added another set of 21 questions and answers to its Q&A concerning the leave requirements of the Families First Coronavirus Response Act (FFCRA), increasing the total number of Q&As to 59. The new Q&As clarify, among others things, when small business are exempt, the health care and emergency responder exclusions, and the amount of leave employers must provide. It is important to remember that, while the Q&As provide us with informal guidance on the DOL’s interpretation of the law, the Q&As are not law. In addition, the DOL is modifying its responses to some of the questions on an ongoing basis, making it more difficult to rely upon the Q&As for clear guidance. Nonetheless, employers implementing these new leaves can use these Q&As as part of their good faith compliance efforts. Below is a summary of the most recent set of 21 Q&As by subject area.

When to Count Employees for Coverage. The DOL confirmed that, when calculating the number of employees, employers should look to the total number of employees on the day the employee's leave would start. The result? If an employer is close to 500 employees, the employer could fall in and out of coverage. For example, an employer with 500 or more employees could become covered after a reduction in force that takes it below 500 employees.

Small Business Exemption. The FFCRA permits an exemption for small businesses (those with fewer than 50 employees) from providing leave under the Act to care for a child whose school or childcare provider is closed, if doing so would jeopardize the business’s viability as a going concern. According to the DOL, a small business fits this exemption if an authorized officer of the business determines that: (1) providing leave would result in the business’s expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity; (2) the absence of the employees requesting the leave 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; and (3) an insufficient number of workers are able, willing, qualified, and available to perform the services provided by the employees requesting leave, and that such services are needed for the business to operate at a minimal capacity. If an employer believes it qualifies for the exemption and intends to refuse leave to its employees, it should document why the business meets one or more of the exemption’s criteria. Note this exemption does NOT apply to other forms of Emergency Paid Sick Leave.

Exclusion of Health Care Providers. The FFCRA uses the term “health care provider” in at least two different contexts—in referring to a health care provider who advises an individual to self-isolate and in referring to employees and/or businesses that are excluded from the leave provision. The DOL provided some needed guidance on the different uses of the term.

When the term “health care provider” is used for purposes of advising an individual to self-quarantine due to COVID-19 concerns, a health care provider is defined as a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA. This is consistent with the general definition of a health care provider under the FMLA and is the only definition referenced in the FFCRA.

The DOL, likely in response to concerns raised by the health care industry, provided an expanded definition of a health care provider for the purpose of determining whether an employee is eligible for leave under the FFCRA. In its Q&A, the DOL defines a health care provider as 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. The term also includes any individual employed by an entity that contracts with these types of entities to provide services or to maintain the operation of the facility; 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; and any individual the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s, territory’s or the District of Columbia’s response to COVID-19.

The DOL encourages employers to apply this definition judiciously for purposes of the exemption in order to minimize the spread of the COVID-19 virus. These are permissive exclusions, not required exclusions. Employers in the health care arena should carefully consider their reasoning for excluding employees and consider how the exclusion will impact their ability to provide safe patient care and related services. There is a need for additional guidance from the DOL on how employers can implement this exclusion, along with the exclusion for emergency responders, described below. Because these are new definitions being applied by the DOL outside of the statute or formal regulations, employers should confer with counsel on their reasonable application.

Exclusion of Emergency Responders. The DOL defines an emergency responder, who may be excluded from receiving leave under the FFCRA, as an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients or whose services are otherwise needed to limit the spread of COVID-19. This 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. As with the definition of a health care provider who may be excluded, the DOL also includes any individual who the highest official of a state or territory (including the District of Columbia) determines is an emergency responder necessary for the state or territory's response to COVID-19. Again, the DOL encourages employers to apply this definition judiciously for purposes of the exemption in order to minimize the spread of the COVID-19 virus.

Public Sector Employee Eligibility. Per the DOL guidance, state and federal public-sector employees are generally entitled to take Emergency Paid Sick Leave under the FFCRA, while expanded FMLA leave is available to public employees employed by the states, but is not available to most federal employees.

Full-Time Employees Defined. Full-time employees are eligible for 80 hours of paid sick time under the Emergency Paid Sick Leave Act. The DOL has clarified that a “full-time” employee is an employee who is normally scheduled to work 40 or more hours per week. As a result, any employee who works less than 40 hours a week—even those working a 37.5 hour workweek, for example—will be considered part-time for the purposes of deciding how much time and pay an employee is entitled to under the FFCRA. In other words, even if an employee is full-time for other purposes, you may not be required to give them 80 hours of Emergency Paid Sick Leave (or be able to take a tax credit for 80 hours of paid sick leave). Employees who work fewer than 40 hours a week are considered “part-time” employees and are only eligible to receive an amount of Emergency Paid Sick Leave equal to the number of hours the employee works, on average, in a two-week period.

Son or Daughter Defined. Under the FFCRA, a son or daughter is defined as the employee’s own child, whether a biological child, adopted child, foster child, stepchild, legal ward, or a child for whom the employee is standing in loco parentis (that is, having day-to-day responsibilities to care for or financially support the child). Though the FFCRA refers to children who are under 18 years old, the DOL’s guidance states that the Act will be interpreted to also include a son or daughter age 18 or older who has a mental or physical disability and who is incapable of self-care because of that disability.

Total Amount of Leave Available Under the FFCRA. The DOL has now provided clarity on the question of whether the expanded FMLA leave is in addition to or part of the 12 weeks of leave provided under the FMLA. The DOL stated the expanded FMLA is part of the total 12 weeks of leave provided under the FMLA, for any qualifying reason. The FFCRA does not expand the 12-week FMLA allowance. In other words, if an employee has already used the 12 weeks of leave provided under the FMLA for other reasons, the employee will not be entitled to take leave any Public Health Emergency Leave. However, those employees who were not previously eligible for FMLA (i.e., those who have not worked 12 months or 1,250 hours or those who work for an employer with less than 50 employees) will have a full 12 weeks of partially paid Public Health Emergency Leave under the expansion of the FMLA.

The DOL also confirms that employees are eligible to receive an additional 2 weeks of Emergency Paid Sick Leave. This form of leave is available even if the employee already exhausted his or her available 12 weeks of leave under the FMLA. Further, Emergency Paid Sick Leave is in addition to any other type of leave provided under federal, state, or local law; collective bargaining agreements; or company policies. Employers should use caution when modifying any leave policy to coordinate with these additional leaves.

Concurrent Use of FFCRA Leaves. The DOL confirmed that employees may only use FMLA leave and paid sick leave together when the need for leave is for the purpose of caring for a child because the child’s school or place of care is closed, or childcare provider is unavailable, due to COVID-19.

Job Restoration. Employees taking leave under the FFCRA have the same job restoration rights as under traditional FMLA leave. However, if certain hardship conditions exist, employers with fewer than 25 employees are exempted from the obligation to reinstate employees who take FFCRA leave. For these very small employers, a hardship can only be claimed if, despite reasonable efforts by the employer to restore the employee, restoration was not possible because the position no longer exists because of economic or operating conditions affecting employment and due to COVID-19 related reasons. An employer who claims a hardship must make reasonable efforts to contact the employee if an equivalent position later becomes available. This obligation extends up to one year after the person’s leave concluded or one year following a 12-week period after the person’s leave began, whichever is earlier.

These detailed rules related to the claim of a hardship by small employers are unique to the FMLA expansion for Public Health Emergency Leave. The FMLA regulations (for other forms of FMLA) also contains a broader exception to the obligation of employers with 50 or more employees to restore an employee who took FMLA leave to the same or equivalent position, i.e., when the employee would not have a position if the employee had been continuously working during the FMLA leave period. In other words, if the employer would have laid off or furloughed the employee during a leave (in a manner and for reasons unrelated to the employee’s FMLA leave), the employer is not obligated to return the employee to work (or even continue the leave). The current regulations applicable to employers with 50 or more employees do not require such employers to make efforts to contact an individual for a period of a year. This conflict may be addressed in upcoming guidance or regulations.

Leave and Health Insurance Waiting Periods. If the employer requires employees to complete a waiting period before they may elect health coverage, any days on FFCRA leave must be counted towards completing the waiting period.

We will continue to monitor future guidance from the DOL and other legislation that may impact employers during this challenging time. If you have questions, please contact Tami Earnhart, Angela Courtwright, Germaine Willett or any other member of our Labor, Employment & Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 

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