The U.S. Department of Labor (DOL) has made major updates to its Families First Coronavirus Response Act (FFCRA) Questions and Answers page for the second time, unveiling both revisions to previously existing Q&As (numbered 1 through 37) and 22 completely new Q&As (numbered 38 through 59).
Significant updates include long-awaited guidance on the availability of the small business exemption and scenarios where leave under the FFCRA’s Emergency Family and Medical Leave Expansion Act (E-FMLA) and the Emergency Paid Sick Leave Act (EPSL) and other federal, state, and local leave entitlements may overlap and interact. Other important updates include but are not limited to clarified definitions of key terms like “health care provider” and “emergency responder,” guidance on counting employees to determine FFCRA coverage, recordkeeping and documentation requirements, and calculating an employee’s regular rate of pay for purposes of paid leave.
While there remains a caveat in Question 4 that “the criteria set forth by the Department [regarding the FFCRA’s small business exemption] will be addressed in more detail in forthcoming regulations,” the DOL’s guidance in newly published Q&As 58 and 59 nonetheless gives small business owners a broad view of the standard used to determine eligibility for the exemption. To be clear, a specific explanation of each of the criteria and definitive guidance on the submission and approval process for exemptions will be forthcoming from the Small Business Administration (SBA).
According to Q&As 58 and 59, the FFCRA’s small business exemption, available to businesses with fewer than 50 employees, applies when an “authorized officer of the business” determines that providing paid leave when an employee’s child’s school or place of care is closed or childcare is unavailable because of the coronavirus pandemic would jeopardize the viability of the business for any of the following three reasons:
While the exemption covers all forms of E-FMLA Leave, it only applies to one (1) out of the six (6) qualifying needs for EPSL Leave. In other words, all employers, regardless of size, must provide up to 80 hours of paid sick leave to employees unable to work or telework because:
Employees are entitled to EPSL Leave in addition to other leave provided under federal, state, and local law, any applicable collective bargaining agreement, and their employers’ existing company policies. Employers cannot count EPSL leave “against” leave entitlements under these laws, agreements, or policies.
Employees of businesses without “traditional” FMLA coverage before April 1, 2020 will have a full 12 weeks of E-FMLA Leave at their disposal. The calculus may be different for employees of businesses previously covered by the FMLA because the DOL has clarified that both “traditional” and “expanded” FMLA Leave derive from the same annual 12-week allotment. If an employee took two weeks of “traditional” FMLA Leave in January 2020, they will have 10 weeks of remaining leave that can be used for either or both “traditional” or “expanded” FMLA Leave.
When an employee is advised by a “health care provider” to self-quarantine because of qualifying COVID-19 concerns, the employee is only entitled to paid leave if the provider is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for FMLA purposes.
“Health care providers” who are not entitled to E-FMLA or EPSL Leave include anyone working for employers like doctor’s offices, hospitals, medical schools, local health departments or agencies, nursing homes, pharmacies, and lab or medical testing facilities. This includes all individuals employed by any contractors that provide services to or maintain operation of these entities.
Similarly, “emergency responders” who may be excluded from E-FMLA and EPSL Leave include all employees necessary to provide transport, care, health care, comfort, or nutrition to patients, or whose services are otherwise needed to limit the spread of COVID-19. This covers not only people like law enforcement officers and firefighters, paramedics and emergency medical technicians, and 911 operators and public works personnel, but also individuals whose work is necessary to maintain operation of facilities employing these individuals.
The standard for tallying employees to determine EPSL and E-FMLA coverage is different from that used under the “traditional” FMLA. For both forms of FFCRA Leave, employers are instructed to count the number of full- and part-time employees employed on the day that an employee’s leave would begin.
For E-FMLA Leave, both full- and part-time employees are paid based on the number of hours they “normally” work each week. For EPSL Leave, any employee normally scheduled to work 40 or more hours per week is a full-time employee entitled to 10 days of paid leave based on their full regular rate of pay. Employees who normally work fewer than 40 hours per week are “part-time” and shall receive EPSL leave based on the average number of hours they work in a typical two-week period.
In terms of documentation employers may require before granting EPSL or E-FMLA Leave, the DOL makes reference to “applicable IRS forms, instructions, and information,” which are not yet available but will presumably be published soon. For E-FMLA Leave specifically, documentation necessary to show an employee’s child’s school or place of care is closed or childcare provider is unavailable for qualifying COVID-19 reasons may include a notice that has been posted on a government, school, or daycare website; published in a newspaper; or emailed to the employer directly from an employee or official of the school, place of care, or childcare provider. In order for employers to claim refundable tax credits under the FFCRA for EPSL or E-FMLA Leave, the employer must retain this documentation in their records.
An employee’s regular rate of pay for EPSL and E-FMLA Leave is the average of the employee’s regular rate over a period of up to six months before the date the employee begins leave. For employees with fewer than six months of service with their current employer, this is calculated based on the employee’s regular rate of pay for each week the employee has worked for their current employer. The regular rate of pay includes commissions, tips, and piece rates consistent with the Fair Labor Standards Act (FLSA).
When new employees are out EPSL or E-FMLA Leave, all time spent on leave counts toward any “waiting period” before the employee becomes eligible for employer group health coverage.
While employers may choose to provide intermittent EPSL and E-FMLA Leave to employees unable to work or telework in accordance with preexisting employer policies, or by agreement with employees on a case-by-case basis, they are in no way required to do so.
Just like under the “traditional” FMLA, a “son or daughter” for purposes of E-FMLA and EPSL Leave is the employee’s own child, including a biological, adopted, or foster child, a stepchild, a legal ward, or a child from whom the employee is standing in loco parentis. This may also include an adult son or daughter who has a mental or physical disability and is incapable of self-care because of that disability.
The DOL has also clarified that employees taking EPSL Leave have the same reinstatement rights as employees returning from E-FMLA Leave (just like any form of “traditional” FMLA Leave). This means barring exigent circumstances, employees must be restored to the same (or a nearly equivalent) job upon return from leave.
Just like with “traditional” FMLA Leave, the DOL has clarified that an employer may refuse to reinstate highly compensated “key” employees upon conclusion of E-FMLA Leave if their position is no longer available due to economic or other operating conditions caused by a COVID-19 related public health emergency. However, the employer must make reasonable efforts to restore the employee to a position with equivalent pay, benefits, and other terms and conditions of employment.
If no position is immediately available, the employer must make reasonable efforts to contact the employee if an equivalent position becomes available within one (1) year of either the date that the qualifying need giving rise to the employee’s E-FMLA leave ends, or 12 weeks after the date the employee’s E-FMLA Leave begins, whichever occurs earlier.
Stay tuned to Stevens & Lee’s Alerts and Newsletters and COVID-19 Resource Center for further updates as coronavirus-related developments impacting employee rights and employer obligations continue to develop under the FFCRA and other federal, state and local laws. In the meantime, if you have any questions about how this, or any other, labor and employment law development may affect your business, please contact Daniel J. Sobol, Alexander V. Batoff or the Stevens & Lee attorney with whom you regularly work.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.
