By Blerina Kotori, Clay Creps, and Christopher Morehead
On March 28, 2020, the Department of Labor (DOL) released its third round of Guidance ahead of the Families First Coronavirus Response Act’s (FFCRA) April 1, 2020 effective date. The new Guidance provides additional information regarding exemptions for small employers, how emergency leave under FFCRA impacts traditional FMLA leave, further clarification on the exemptions for health care providers and emergency responders, among others.
- I am a small employer – do I have to comply with the paid leave requirements of the FFCRA?
Potentially, but only from the requirement to provide leave related to school/childcare closures.
Employers with less than 50 employees may be exempt from both the requirement to provide emergency paid sick leave (EPSL) and emergency paid family leave (EFML) for school and/or childcare closures due to COVID-19. Importantly, this Guidance clarifies that small employers are not exempt from the requirement to provide EPSL for reasons unrelated to school/childcare closures (e.g., medical-related reasons for EPSL).
To qualify for this exemption, the leave must jeopardize the viability of the business as a going concern. An employer with less than 50 employees may claim this exemption if an authorized officer of the business determines one of the following conditions exists:
- The provision of EPSL or EFML 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;
- The absence of the employee or employees requesting EPSL or EFML would entail a substantial risk to the financial health or operational capabilities of the small business; or
- There are not sufficient workers who are able, willing, and qualified, and available at the time and place needed, to perform the labor/services provided by the employee(s) requesting EPSL or EFML, and the labor/services are needed for the business to operate at a minimal capacity.
- I am a health care provider/emergency responder – what do I need to know?
Health care providers. The Guidance makes clear that employers can take a broad view on which employees may be excluded from the requirements of the FFCRA. It defines “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 healthcare provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.
Further, the exemption applies to “any individual employed by” an entity that contracts with any of the above institutions to provide services or to maintain operation of the facility. This includes anyone employed by any entity that provides medical services, produces medical products, among other things.
Emergency Responders. Similarly, the Guidance takes a broad stance on which employees are covered by the emergency responder exemption. An emergency responder is defined 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.” The Guidance extends the exemption to, among others, law enforcement officers, correctional institution personnel, fire fighters, EMS personnel, physicians, nurses, public health personnel, paramedics, EMT, 911 operators, and public works personnel.
- Given all the various types of leaves out there, including traditional FMLA, how much leave can employees take during this pandemic?
The Guidance provides additional clarity on how the leave entitlements under the FFCRA interact with other leave laws.
First, the Guidance makes clear that an employee’s eligibility for EFML will be dependent on how much traditional FMLA leave the employee used during the prior 12-month period. If an employee has exhausted 12 weeks of traditional FMLA in the prior 12-month period, the employee cannot take an additional 12 weeks of EFML. If an employee used some, but not all, of their 12 weeks of FMLA, they will be eligible to use EFML for the remaining portion of their available leave. DOL offers this example:
“[A]ssume you are eligible for preexisting FMLA leave and took two weeks of such leave in January 2020 to undergo and recover from a surgical procedure. You therefore have 10 weeks of FMLA leave remaining. Because expanded family and medical leave is a type of FMLA leave, you would be entitled to take up to 10 weeks of expanded family and medical leave, rather than 12 weeks. And any expanded family and medical leave you take would count against your entitlement to preexisting FMLA leave.”
Second, the Guidance suggests that employees may receive up to 14 weeks of leave under the FFCRA. It states that employees are “entitled to [EPSL] regardless of how much leave you have taken under the FMLA. Paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month cap period.” This means that employees who take 12 weeks of EFML due to a school/childcare closure may use an additional two weeks of EPSL (for up to 14 total) if the employee did not use EPSL for a school/childcare closure during the 10-day, unpaid waiting period of EFML. For example, an employee may have used EPSL for medical reasons before using EFML. Or, the employee could elect to use employer-provided PTO or Oregon Sick Leave during the 10-day waiting period, and then use two weeks of EPSL at the backend of the EFML (provided, of course, they still qualify).
- Do paid sick leave absences count towards an employee’s waiting period for employer-provided health coverage?
Yes. The Guidance states that eligibility requirements for employer-provided health coverage, including a waiting period, apply in the same way as if the employee continued to work, including days spent on paid sick leave.
- Is there any additional clarification regarding job restoration requirements?
Yes. As previously noted, the FFCRA contains job restoration requirements for employees returning from EPSL/EFML leave. However, employees are not protected from layoffs if the employer can demonstrate that the employee would have been laid off even if they hadn’t taken leave.
In addition, the Guidance states that employers may refuse to return employees to their same position if either (1) the employee is a highly compensated “key” employee under the FMLA, or (2) the employer has fewer than 25 employees, if the employee took leave due to a school/childcare closure and all of the following “hardship conditions exist”:
- The position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of leave;
- The employer made reasonable efforts to restore the employee to the same or 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 leave begins, whichever is earlier.
See our previous updates on the FFCRA here, here, and here.
UPDATE: On April 2, we published DOL Announces Temporary Rules for FFCRA which provides updated information on this topic.
If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group.
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