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March 30, 2020

COVID-19: Update - USDOL Issues New Guidance on Compliance With Families First Coronavirus Response Act

Updated Families First Coronavirus Response Act Q&As (Issued March 28)

On Saturday, the US Department of Labor (USDOL) issued updated guidance for employers regarding compliance with the leave requirements of the Families First Coronavirus Response Act (FFCRA) by adding nearly two dozen more Q&As to the USDOL’s Wage and Hour Division’s website. These new Q&As join 37 other Q&As posted by the USDOL on Tuesday and Thursday, as discussed in prior legal alerts.

Although all of the new Q&As provide additional helpful guidance to employers, three topics merit special attention:

  • Employees may not take leave under the FFCRA’s Emergency Family and Medical Leave Expansion Act (“expanded family and medical leave” ) in addition to the 12 weeks of leave available under the Family and Medical Leave Act (FMLA); instead, employees are provided a total of 12 weeks of leave.
  • The scope of “health care providers” and “emergency responders” who may be excluded by their employers from paid leave under the Emergency Paid Sick Leave Act (“paid sick leave”) or expanded family and medical leave
  • The exemption available for employers with fewer than 50 employees from providing paid sick leave and expanded family and medical leave related to school and place of care closures as well as childcare provider unavailability for COVID-19-related reasons when the imposition of the leave would jeopardize the viability of the business as a going concern 

The Use of Expanded Family and Medical Leave and Traditional FMLA

Under the FFCRA and its expanded family and medical leave provision, an employee is entitled to receive two weeks of unpaid leave as well as up to 10 weeks of partially paid leave when the employee is unable to work (or telework) due to a need to care for the employee’s child under the age of 18 if the “school or place of care has been closed or the childcare provider of the son or daughter is unavailable.”

The updated USDOL guidance clarifies that employees may not take expanded family and medical leave in addition to the 12 weeks available under the FMLA. Instead, employees are provided a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If an employee has taken some but not all 12 workweeks of leave under the FMLA during the current 12-month period determined by the employer, the employee is eligible to take the remaining portion of leave available. However, if the employee has already taken 12 workweeks of FMLA leave during this 12-month period, the employee may not take expanded family and medical leave. The updated guidance further states that “if you take paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, then those two weeks do not count towards the 12 weeks in the 12-month period.”

Although the updated guidance provides useful information regarding the interplay between the FMLA, expanded family and medical leave, and paid sick leave, further clarification will hopefully be forthcoming in the forms of additional interim guidance and in the USDOL regulations expected to be issued in April.

Scope of Health Care Providers and Emergency Responders Who May Be Excluded From Coverage Under the FFCRA

Both the paid sick leave and the expanded family and medical leave sections of the FFCRA state that an employer may elect to exclude “health care providers” and “emergency responders” from receiving benefits under the FFCRA.

The updated USDOL guidance 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 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. 

The definition of “health care provider” also includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility. This 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.

The updated guidance defines “emergency responder” as:

  • 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 individuals 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.

FFCRA Exemption for Employers With Fewer Than 50 Employees Based on Business Viability Impact

Both the paid sick leave and the expanded family and medical leave sections of the FFCRA state that the USDOL secretary of labor has the authority to issue regulations to exempt small businesses with fewer than 50 employees from the FFCRA requirements related to school and place of care closures as well as child care provider unavailability for COVID-19-related reasons “when the imposition of the requirements would jeopardize the viability of the business as a going concern.”

In advance of applicable regulations issued by the secretary of labor, the USDOL’s updated guidance states that an employer with fewer than 50 employees, including a religious or not-for-profit organization, may claim this exemption if an authorized officer of the business has determined one of the following:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small 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 paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities.
  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 paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

The USDOL’s updated guidance does not provide details regarding whether small businesses must submit documentation with qualifying reasons to the USDOL prior to claiming an exemption. We expect the USDOL may provide additional guidance or otherwise address the issue in its anticipated April 2020 regulations.

Given the USDOL’s rolling additions to its FFCRA Q&As, we recommend that employers monitor the USDOL website on a regular basis. As a reminder, the FFCRA becomes effective this Wednesday.

If you have any questions regarding the content of this alert, please contact Buster Melvin, partner, at emelvin@barclaydamon.com or another member of the Labor & Employment Practice Area.

We have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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