COVID-19: DOL Publishes 3rd Round of FFCRA Guidance

U.S. Department of Labor Publishes Additional FFCRA Guidance

By: Kyle McClain

March 30, 2020

This weekend, the United States Department of Labor (“DOL”) published a third round of guidance regarding the Families First Coronavirus Response Act (“FFCRA”). Please refer to my previous posts discussing the DOL’s first and second releases of FFCRA guidance for more information about those releases, as well as my post about the DOL’s new employee notice posters.

The DOL’s Saturday news release explains that the DOL’s newest guidance is in the form of an update to its “Questions and Answer” document available on its website (here) which at this point has become something of a “living document” as each update has updated it with additional sets of Questions and Answers. Initially, the document included 14 sets of questions and answers, was first revised to add an additional 23 sets of questions and answers (numbers 15-37), and now has grown to 59 sets of questions and answers with the latest addition of 22 more questions and answers (38-59). As I have said before, for employers, there is no substitute for reading the complete document, but I will address some of the most relevant topics below.

“Full-Time Employee” Defined

For purposes of the Emergency Paid Sick Leave Act (“EPSLA”) portion of the FFCRA, Q&A 48 defines the term “full-time” employee as “an employee who is normally scheduled to work 40 or more hours per week.” This definition is important for calculating exactly how much paid sick leave an employee is entitled to under the EPSLA, and resolves an ambiguity and potential inconsistency between the EPSLA and the Emergency Family and Medlcal Leave Expansion Act (“EFMLEA”) that has been obvious since the day the FFCRA was passed (just see my first post!).

Application of Small Business Exemption

Both the EPSLA and the EFMLEA provide the Secretary of Labor authority to issue regulations to exempt small businesses with fewer than 50 employees from the requirements of each act related to provide leave due to school or place of care closures or child care provider unavailability for COVID-19 “would jeopardize the viability of the business as a going concern.” The newest guidance, via Q&A 58 and 59, sets forth criteria to qualify for such exemption as follows:

“A small business may claim this exemption if an authorized officer of the business has determined that:

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; 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 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.”

While the decision by the “authorized officer” is still going to be largely a subjective one, and potentially a difficult one at that, at least there is now some objective basis to frame the decision.

FFCRA Provides Most Employees Reinstatement Rights

Q&A 43 states that “generally” an employee is entitled to reinstatement in the “same (or as nearly equivalent) job” upon returning work following leave. This is consistent with the federal Family and Medical Leave Act (“FMLA”). Exceptions to that requirement include generally applicable employment actions (such as layoffs independent of leave status), “key employees” returning to work, and certain employees of employers with fewer than 25 employees who take leave to care of a child whose school or place of care was closed and who meet four “hardship conditions.”

Expanded Family and Medical Leave under the FFCRA Expands Qualifying Reasons, Not 12-week Leave Entitlement

Although not necessarily an ambiguity under the FFCRA, Q&A 44 and 45 make explicit that the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) as part of the FFCRA only makes available an additional qualifying reason for use of FMLA leave (i.e., leave to care for a child whose school or place of care is closed), it does not expand the usual 12-week leave entitlement. Therefore, if an employee has already use some or all of the employee’s 12 weeks of leave under the FMLA for non-COVID-19 reasons, the employee does not receive additional weeks to use for COVID-19 reasons.

Most Public Sector Employers/Employees are Covered by the FFCRA

Q&A 52-54 address public sector employers/employees specifically, with the takeaway being that most public sector employers/employees are covered, except for certain federal employers/employees.

“Health Care Provider” Defined

The FFCRA allows employers of employees who are “health care providers” and “emergency responders” to exempt them from the paid leave requirements of the EPSLA and EFMLEA (presumably because those jobs are necessary or “essential” during the pandemic). While one part of the EFMLEA says that the term “health care provider” has the same meaning as that term is defined under the FMLA, the guidance clarifies that such definition only applies to what type of “health care provider” can provide a doctor’s note supporting a need for leave. Q&A 56 of the guidance, provides that for purposes of the exemption, “health care provider”:

“means 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 includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.”

“Emergency Responder” Defined

The FFCRA did not provide any type of definition for the term “emergency responder.” Q&A 57 of the the guidance provides:

“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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.”

The information contained in this post is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice. Any specific questions about this information should be directed to Attorney Kyle McClain.