Department of Labor Answers More FFCRA Questions

On March 28, 2020, the Department of Labor (DOL) updated its guidance concerning the Families First Coronavirus Response Act (FFCRA) with answers to additional frequently asked questions. This newest guidance provides details on the interplay of emergency family leave with other forms of leave under the FMLA, the definition of such terms as “employee” and “healthcare provider,” and the FFCRA’s coordination with other benefits, among other topics.

A summary of the new guidance is set forth below. For prior summaries and information related to the FFCRA, please see our prior blog posts, which can be accessed here, here, and here.

If an employee has already exhausted their 12 workweeks of FMLA leave before April 1, 2020, do they get an additional 12 weeks of leave under the Emergency Family and Medical Leave Expansion Act?

No. Leave under the FFCRA to care for a school-aged child whose school or care center has closed is not a separate leave entitlement from the Family and Medical Leave Act (FMLA). If an employee has already taken 12 workweeks of FMLA leave during the current 12-month period as defined by the employer, that employee is ineligible for additional leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA).

If an employee has taken some, but not all, 12 workweeks of leave under the FMLA during the current 12-month period as defined by their employer, that employee may take the remaining portion of leave available under the EFMLEA (if they are eligible).

In addition, if an employee takes all 12 workweeks of leave under the EFMLEA in 2020, that employee has exhausted leave under the FMLA and is not eligible for additional leave until the current 12-month period, as defined by their employer, expires.

However, an employee who takes some, but not all, 12 workweeks of leave under the EFMLEA during the current 12-month period as defined by the employer, may use the remainder of that time for any reason recognized under the FMLA (including, for example, for a serious medical condition).

Who is a "health care provider" who may be excluded from paid and/or expanded leave under the Emergency Paid Sick Leave Act (EPSLA) and/or EFMLEA?

The Department of Labor has embraced an expansive definition of the term “health care provider” to include essentially anyone who works at a health care center. This reflects the crucial role that all aspects of the health care system plays in addressing the ongoing public health crisis occasioned by COVID-19.

The definition includes:

• Employees 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. 
• Employees working at temporary and permanent institutions, facilities, locations, and sites where medical services are provided that are similar to the above institutions.
• Employees 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.
• Employees 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.
• Any individual that the highest official of a state, territory, or the District of Columbia determines is a health care provider necessary for that state, territory, or District of Columbia’s response to COVID-19.

Who is an "emergency responder" who may be excluded from paid and/or expanded leave under the EPSLA and/or EFMLEA?

For these purposes, an "emergency responder" is defined as an employee who is necessary for the transport, care, health care, comfort, and nutrition of patients, or whose services are otherwise needed to limit the spread of COVID-19.

This includes:

• 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.
• Individuals who work for facilities employing the above individuals and whose work is necessary to maintain the operation of the facility.
  Any individual that the highest official of a state, territory, or the District of Columbia determines is an emergency responder necessary for that state, territory, or District of Columbia’s response to COVID-19.

Which employees are covered by the leave provisions of the FFCRA?

The definition of an employee includes all full-time and part-time employees within the United States (including U.S. territories), as well as “joint employees” working at an employer’s site temporarily and/or through a temporary staffing agency. Employees who are not covered include health care providers and emergency responders.

Additionally, employees of certain small businesses are ineligible to take leave to care for a child whose school or day care center is closed if the leave would jeopardize the company’s viability as a going concern.

Who is a son or daughter for purposes of the FFCRA?

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

Do employees have a right to return to work after taking sick and/or family leave under the FFCRA?

Employers must provide the same (or an equivalent) job to an employee who returns to work following emergency sick or family leave, unless:

• The employee would have been laid off even they had not taken leave;
• The employee is a highly compensated "key" employee as defined under the FMLA;
• The employer has fewer than 25 employees, and the employee took leave to care for a son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions exist:
  
  • The employee’s position no longer exists due to economic or operating conditions related to COVID-19 during the period of leave;
  • The employer made reasonable efforts to restore the employee to the same or an equivalent position; and
  • 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, the employer continues to make reasonable efforts to contact the employee if an equivalent position becomes available.

Who is considered a "health care provider" that can provide a qualifying reason for paid sick leave, specifically as it relates to advice to self-quarantine due to COVID-19?

The DOL has drawn a distinction between health care providers who may be exempted from the scope of the FFCRA’s leave provisions and health care providers who may diagnose a patient with a qualifying reason for the purpose of obtaining COVID-19-related sick leave. For the latter, a “health care provider” is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

What constitutes a "full-time" or "part-time" employee for purposes of the EPSLA?

A “full-time employee” is an employee who is normally scheduled to work 40 or more hours per week. A “part-time employee” is an employee who is normally scheduled to work fewer than 40 hours per week.

Notably, the EFMLEA does not distinguish between full- and part-time employees. The number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.

When is a small business exempt from the provisions of the EPSLA and the EFMLEA?

The DOL has also provided clarity on the process by which employers with fewer than 50 employees may demonstrate that they are exempt from providing leave for closure of a child’s school or place of care due to COVID-19 related reasons.

An authorized officer of the business must determine that at least one of these conditions is satisfied:

1. 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(s) requesting 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(s) requesting leave and these labor or services are needed for the small business to operate at a minimal capacity.

As noted in our advisory concerning small businesses and the FFCRA, this exemption does not relieve small employers from the duty to provide paid sick leave for any of the other qualifying reasons.

Does an employee's use of emergency paid sick leave affect the employee's other leave banks?

No – paid sick leave under the EPSLA is in addition to other leave available to employees under other laws, an employer’s policy, or a collective bargaining agreement.

If an employee uses emergency sick and family leave together, can the leave be used for any COVID-19 related reason?

No – the family leave under the EFMLEA applies only when an employee takes leave to care for a child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 related reasons.

Can an employee's use of paid sick leave affect the employee's eligibility for employer-provided health coverage?

No – if an employee is on an employer-provided group health plan, the employee is entitled to coverage during his or her paid sick leave on the same terms as if the employee continued to work.

For example, if an employee elected to take paid sick leave while in a waiting period for the employer’s health coverage, the days the employee is on paid sick leave would count towards completion of the waiting period.

Can public sector employees take paid sick leave under the EPSLA?

Yes, subject to certain exceptions:

• Some categories of the U.S. Government Executive Branch employees may be excluded from taking certain kinds of paid sick leave. Federal employees should seek guidance from their employers.
• Health care providers and emergency responders, as defined by the DOL, may be excluded by their public employer from being able to take paid sick leave.

Can public sector employees take emergency family leave under the EFMLEA?

Generally, employees of non-federal public agencies are entitled to emergency family leave under the EFMLEA. Most federal employees, however, are not entitled to that leave. Additionally, health care providers and emergency responders, as defined by the DOL, may be excluded by their employer from being able to take expanded family and medical leave.

We will continue to update you as additional guidance from the DOL becomes available.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.