by Fred Preis, Rachael Jeanfreau, and Philip Giorlando
The Department of Labor issued a third round of guidance on the Families First Coronavirus Response Act, which goes into effect on Wednesday April 1st. This new guidance addresses the coverage of employers and employees under the Act, provides key definitions, including “health care provider,” “emergency responder,” and “part-time employee,” and explains when employers with fewer than 50 employees may be exempt under the FFCRA.
Coverage of Employers and Employees under the Act
The DOL’s new guidance first addressed which employers and employees are covered under the FFCRA. As previously discussed in our FFCRA Summary and our previous summaries of prior guidance, public employers are covered under the FFCRA (although Federal employees generally are not eligible for expanded family and medical leave), and private employers with 500 or fewer employees are also covered. While public employees are generally entitled to emergency paid sick leave, only employees of a non-federal public agency, such as those public employees who work for the government of a State, city, municipality, parish, or county, are entitled to expanded family and medical leave. The DOL also explained that the Office of Management and Budget can exclude certain Federal Executive Branch employees from taking certain kinds of paid sick leave and expanded and family medical leave.
The FFCRA uses the same broad definition of “employee” as the Fair Labor Standards Act, which is any individual the employer “suffers or permits to work.” This includes full-time and part-time employees, as well as “joint employees” working with the employer and another employer, such as those working on site temporarily and/or through a temp agency. An employee is eligible for emergency paid sick leave regardless of the length of his or her employment. However, an employee must have been employed for 30 calendar days to qualify for expanded family and medical leave.
Full-time and Part-time Employee Defined
The DOL also defined “full-time” and “part-time” employee. For purposes of paid sick leave, a full-time employee is normally scheduled to work 40 or more hours per week, and a part-time employee is normally scheduled to work fewer than 40 hours per week. This is an important clarification because the definition of part-time can vary among employers, so employers should be sure that their definition of “part-time employee” also satisfies the emergency paid sick leave’s definition of “part-time employee.”
Expanded family and medical leave applies to all qualifying employees, who have been employed for 30 calendar days, regardless of their hours worked, but the number of hours the employee normally works each week will affect the amount of pay the employee can receive.
Health Care Provider and Emergency Responder Defined
The DOL guidance has finally defined two terms that have caused concern for healthcare employers since the FFCRA was enacted, “health care provider” and “emergency responder.”
There are two definitions for a “health care provider,” which apply in different circumstances. When considering who is able to advise regarding self-quarantine, which is a reason for emergency paid sick leave, a “health care provider” is a licensed doctor of medicine, nurse practitioner, or other provider permitted to issue a certification under the FMLA.
As to “health care providers” who may be exempt from paid sick leave and expanded family and medical leave, the DOL broadly defines the term 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. This definition also includes any individual who is employed by a company that (1) contracts with any of the above institutions to provide services or to maintain the operation of the facility or (2) 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 DOL also clarified that employers should be judicious when using the definition to exempt health care providers. The highest official of a State or territory can also determine other individuals who should be covered by this “health care provider” definition.
This definition is much broader than many commentators were expecting because it includes anyone employed at any of the above listed facilities/institutions, not just those employees directly responsible for providing patient care. It also includes employees at facilities beyond those directly involved in addressing COVID-19. It is also important to note that under the FFCRA, it is the employer who elects to exclude health care providers and emergency responders from the FFCRA. So, this election by the employer could trigger many issues, including possible discrimination and other claims. Therefore, health care provider employers should be cautious when excluding certain employees.
An “emergency responder” is 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. The highest official of a State or territory can also determine other individuals who should be covered by this “emergency responder” definition.
Son or Daughter under the FFCRA
The DOL also explained that a “son or daughter” under the FFCRA is defined as the employee’s own child, regardless of whether the child is adopted, a foster child, a stepchild, a legal ward, or if the employee is standing in loco parentis, meaning the employee stands in the shoes of the parent for that child. The DOL also clarified that “son or daughter” includes an adult child who has a mental or physical disability and is incapable of self-care because of that disability.
Enforcement Options for Employees
The DOL’s guidance also explains how employees can enforce the FFCRA if they believe their employer is in violation. The DOL specified that the employee should speak with his or her employer first, but could generally either contact the Wage and Hour Division, the DOL Division responsible for enforcement of the FFCRA, or file a lawsuit directly.
The DOL guidance also suggests but does not explicitly state that if an employer with fewer than 50 employees violates the expanded family and medical leave provisions, then an employee generally cannot file a private lawsuit without first contacting the Wage and Hour Division. This stipulation by the DOL suggests that the Wage and Hour Division is placing an additional requirement on certain employees to report an alleged violation of the expanded family and medical leave provisions to the Wage and Hour Division before filing a lawsuit, if the employer is not covered under the FMLA’s typical provisions, which apply to employers with 50 or more employees. This statement creates some ambiguity in how the DOL will enforce the expanded family and medical leave provisions for employers not covered by the FMLA’s normal provisions.
Right to Return to Work
The DOL confirmed in the guidance that an employee is entitled to return to the same or a nearly equivalent job once the employee returns from either emergency paid sick leave or expanded family and medical leave. The DOL further clarified that the employee is not protected from employment actions, such as layoffs, that would have affected that employee regardless of whether he or she took leave. The employer must show that the employee on leave would have been laid off even if he or she had not taken the leave.
The DOL guidance also suggests that the “key” employee exception under the general FMLA rules apply to both types of leave. The “key” employee exception allows an employer to deny a “key” employee (a salaried, FMLA eligible employee who is among the highest-paid 10 percent of all employees within 75 miles) the right to restoration to his position after returning from leave, if the employer can show a substantial and grievous economic injury as a result of the restoration and sent notice to the employee.
The DOL also explained the exception provided in Section 3102 of the FFCRA, which states that if the employer employs fewer than 25 employees and the employee took leave to care for a child whose school or place of care was closed, then the employee is not entitled to restoration in his or her prior position if:
Expanded Family and Medical Leave in Addition to Normal FMLA Leave
The DOL’s guidance explains that an employee is only eligible for expanded family and medical leave if they have not already taken the maximum leave available under the general FMLA provisions. Generally, an employee may take a total of 12 workweeks of FMLA leave during an applicable 12-month period. So, if an employee already has exhausted 12 workweeks of FMLA leave during the 12-month period, then the employee is not allowed to take the additional expanded family and medical leave until after the new 12-month period begins. Additionally, any expanded family and medical leave taken by an employee counts against this 12-week total for general FMLA leave.
Small Business Exemption
An employer with fewer than 50 employees is exempt from providing (1) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (2) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons, if providing the leave would jeopardize the viability of the small business as a going concern. To claim this exemption, an authorized officer of the business must determine that:
Small businesses are not exempt from the requirement to provide paid sick leave for other qualifying reasons.
The DOL has not provided guidance yet regarding how employers should request the exemption or document the reasons for the exemption. We are hopeful that further guidance will be issued regarding this before the FFCRA becomes effective on Wednesday April 1st.
Concluding Remarks This third round of guidance issued by the DOL has provided some crucial clarification regarding the applicability of the FFCRA, including key definitions for “health care provider” and “emergency responder,” and the analysis for determining whether an employer with fewer than 50 employees is eligible for the small business exemption under the FFCRA. Employers should carefully review this guidance and should also anticipate additional guidance before the FFCRA goes into effect on Wednesday, April 1st.