March 29, 2020 Department Of Labor Issues Additional Guidance On The Families First Coronavirus Response Act

On March ‌22, 2020, we issued an E-Update summarizing the basic requirements of the Families First Coronavirus Response Act (“FFCRA”) and noting that many questions about how it would be interpreted were unanswered. Our March‌ 28, 2020 E-Update summarized the Department of Labor’s (“DOL”) subsequent guidance through March ‌27. This E-Update summarizes additional guidance issued by the DOL on March‌ 28.

Highlights of the DOL’s March 28, 2020 Guidance

1. Who is a qualifying “son or daughter” for FFCRA leave due to childcare needs?

A “son or daughter” is the employee’s own child, which includes a biological, adopted, or foster child, stepchild, or legal ward, as well as a child for whom the employee is standing in “loco parentis” (i.e., someone with day-to-day responsibilities to care for or financially support a child). Also included is an adult son or daughter age 18 or older who (1) has a mental or physical disability and (2) is incapable of self-care because of that disability.

2. How does the FFCRA define “full-time” and “part-time” employee?

For purposes of Paid Sick Leave, a full-time employee is any employee who is normally scheduled to work 40 or more hours per week. A part-time employee is one who is normally scheduled to work fewer than 40 hours per week.

In contrast, the Paid Family Leave provisions do not distinguish between full and part-time employees. Instead, all eligible employees are to be paid the number of hours they normally work each week for the duration of the leave

3. How do the new FFCRA leave benefits interact with existing Family and Medical Leave Act (FMLA) entitlements and rules?

Eligible employees may use up to 80 hours of Paid Sick Leave under the FFCRA regardless of how much leave they may have taken previously under the FMLA.

However, for employers covered by the FMLA prior to April 1, eligible employees are limited to a combined total of 12 weeks of Paid Family leave and FMLA leave taken in the same 12-month leave year (as that leave year is defined in the employer’s existing FMLA policy). Thus, for example, if an employee had already taken some, but not all, of their 12 weeks of FMLA leave during the employer’s current 12-month leave year, the employee would only be entitled to take the remaining portion of the 12 weeks of leave as Paid Family Leave under the FFCRA.

If an employer was not covered under the FMLA on April 1, 2020, this analysis does not apply. The employee would be entitled to the full 12 weeks of protected leave under the FFCRA, including 10 weeks of paid leave time.

The same rules apply to employees taking FFCRA leave now, who may later wish to use FMLA leave for a serious health condition unrelated to COVID-19. An employee is not entitled to more than a combined total of 12 weeks leave in the employer’s 12-month leave period for any combination of FFCRA or FMLA qualifying reasons.

4. What about employees who are in the waiting period for their employer’s health coverage?

The employer’s group health coverage rules continue to apply. An employee in the waiting period would not be eligible for health coverage until the waiting period is completed, but would then be eligible on the same terms as if he or she had continued working. The days the employee was on Paid Sick Leave would count toward completion of the waiting period.

5. Are public employers covered by the Paid Sick Leave law?

Generally, yes. The Paid Sick Leave law incorporates the definition of “public employer” used in the Fair Labor Standards Act, which includes “the government of a State or political subdivision thereof,” as well as any interstate government agency. This includes, for example, any county, city or local government entities. Some, but not all, of the federal government is covered.

6. Are public employers covered by the Paid Family Leave law?

The Paid Family Leave law uses the same definition for public employers as the Family and Medical Leave Act (“FMLA”). Thus, it applies to all states, counties, cities, municipalities or similar entities. Again, the federal government excludes portions of its employees from the law.

7. Who is a “health care provider” whose advice can be used to determine who should self-quarantine due to COVID-19 concerns?

For this purpose, a “health care provider” means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

8.  Who is a “health care provider” who may be excluded by their employer from receiving Paid Sick Leave and/or Paid Family Leave?

For this purpose, the definition of “health care provider” is much broader. A health care provider is 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.

Also included is any employee of an entity that contracts with any of the above institutions or employers to provide services or to maintain the operation of the health care facility. It 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. Finally, it includes any individual that the highest official of a state or territory, determines is a health care provider necessary for that state’s or territory’s response to COVID-19.

9. Who is an “emergency responder” who may be excluded by their employer from receiving Paid Sick Leave and/or Paid Family Leave?

An “emergency responder” is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of 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.

Also included is any individual that the highest official of a state or territory determines is an emergency responder necessary for that state’s or territory’s response to COVID-19.

10. When will the “small business exemption” apply?

A small business, including a religious or nonprofit organization, is exempt from providing Paid Sick Leave and/or Paid Family Leave if all of the following conditions are satisfied:

  • The business employs fewer than 50 employees;
  • An employee requests leave because a child’s school or place of care is closed or child care is unavailable due to COVID-19 related reasons;
  • An authorized officer of the business has determined that one of the following three conditions is satisfied:
  1. Providing the leave would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or 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; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and these labor or services are needed for the small business to operate.

Notably, the DOL did not comment on any process or procedure for obtaining an exemption determination. Its guidance simply states that a small business “is exempt” when the specified conditions are satisfied. At this time, it is unclear whether small businesses must submit any documentation to DOL and obtain an exemption determination. Prior DOL guidance directs small businesses to document their qualifying reasons for an exemption.

11.‌ May an employer lay off an employee who is using, or has used, FFCRA leave benefits due to a worksite closure or lack of work without violating the Act?

The FFCRA requires employers to provide the same (or a nearly equivalent) job to an employee returning from Paid Sick Leave or Paid Family Leave. Thus, an employer may not terminate, discipline, or otherwise discriminate against an employees because they used FFCRA leave benefits. However, it is not a violation of the FFCRA to layoff (or furlough) an employee for legitimate business reasons unrelated to Act, such as closure of the worksite or lack of work. In such circumstances the employer will have the burden to show the employee would have been laid off or furloughed even if they had not taken FFCRA leave.

12. Are there any other exceptions to an employer’s obligation to reinstate an employee to the “same or similar position” at the conclusion of their FFCRA leave?

In general, an employer’s obligation to return an employee to the same (or a nearly equivalent) job is the same as with any employee returning from any FMLA leave. Consistent with existing FMLA rules, the DOL specifically notes that employees are not protected from employment actions, such as layoffs, that would have affected employees regardless of whether they took leave. Therefore, it is clear that if an employer closes its worksite, it need not return employees on leave under the FFCRA to work. Employers should pay special attention to documenting that such employment actions are based on legitimate business reasons.

The FFCRA contains two other, limited exceptions to the employer’s obligation to return an employee to their same position.  Both exceptions are limited to employees taking leave to care for a child whose school or daycare is closed or unavailable due to COVID-19. The first exception is for an employee who qualifies as a “key employee” under existing FMLA rules (in general, an employee who is among the highest paid 10 percent of all employees within 75 miles of the worksite).  The second exception is for employers with fewer than 25 employees. To utilize either of these exceptions, all four of the following hardship conditions must exist:

  • the employee’s position no longer exists because of economic or operating conditions that affect employment due to COVID-19 related reasons during the period of the employee’s leave;
  • the employer made reasonable efforts to restore the employee to the same or an equivalent position;
  • the employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
  • the employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the employee’s leave began, whichever is earlier.

These ongoing obligations will require significant continued attention and documentation by employers who need to utilize this narrow exception to decline to return an employee on FFCRA leave to the same position they held prior to taking leave.

13. What are an employee’s avenues to challenge an employer’s decision that its business is not covered by the FFCRA and thus not required to provide benefits?

The DOL has published both a phone number and email address for employees to submit complaints regarding their employer’s compliance with the FFCRA. Although the DOL encourages employees to raise concerns with their employer first, it also notes that employees may file a lawsuit to enforce their rights to FFCRA benefits.

What This Means

Since the passage of the FFCRA, the DOL has provided three separate rounds of guidance, answering many of the questions raised by employers. The DOL’s guidance has helped clarify employers’ obligations under the FFCRA. In the coming days, PPSC will provide a summary of all of DOL’s guidance to date, and we will continue to update our clients and friends on any additional guidance or regulations published by the DOL.

PPSC has issued this E-Update to provide information on new legislation as a courtesy. It contains general information and does not constitute legal advice, nor does it create an attorney-client relationship. Application of any law is always fact-specific, so you should consult with legal counsel before taking any actions based on the new law.

Denise Brucker Fred Plevin Mike Sullivan

For more information about this or any other issue impacting your business, please contact any of the above attorneys, or or any other Paul, Plevin attorney, by calling (619) 237-5200.