On March 28, 2020, the United States Department of Labor (“DOL”) published additional guidance on nearly two dozen more “critical issues” that the DOL had not addressed in its previous guidance on the recently enacted Families First Coronavirus Response Act (“FFCRA”). Our March 26, 2020 report on the notable takeaways from the previous guidance can be found here.
In addition to providing a few clarifications on the previous guidance, the latest round of guidance is notable for discussing the definition of a “health care provider” and “emergency responder” who may be excluded from coverage under the FFCRA. The DOL also further defines the scope of the small business exemption for purposes of exclusion from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act. The guidance also addresses whether public sector employees may take paid family and medical leave. The DOL indicated that it will continue to add guidance as these benefits go into effect on April 1, 2020.
Here are a few highlights of the DOL’s updated guidance on the FFCRA:
Required records for FFRCA paid leave.
Our last post on the DOL guidance detailed the “appropriate documentation” employers must maintain to obtain a tax credit for providing paid leave under the FFCRA. The most recent iteration of the DOL guidance relaxed that requirement, stating only that employers “should retain appropriate documentation in your records” and directing employers to consult with the Internal Revenue Service for further guidance. The DOL also added that employers are not required to provide leave if the employee has not provided materials “sufficient to support the applicable tax credit.”
Similarly, employers may require employees who are taking expanded family and medical leave to provide additional documentation in support of their leave, in accordance with the current certification rules for conventional Family and Medical Leave Act (“FMLA”) leave requests.
Amount of tax credits allowed.
The DOL clarified that if an employer chooses to supplement or adjust the pay mandated under the FFCRA with paid leave the employer already provided under its paid leave policy, the employer is not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid under the FFCRA or for the amount that exceeds the limits set forth under the FFCRA.
Small business exemptions under the FFCRA.
For the purposes of the FFCRA, the DOL defines a small business as an employer (including a religious or nonprofit organization) with fewer than 50 employees. A small business is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 reasons when doing so would jeopardize the viability of the small business as a going concern.
One of the following three conditions must be met for the small business to claim this exemption:
- The provision of paid sick leave or expanded family and medical leave would result in the small business’ expenses and financial operations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee 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 the employee’s specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient able, willing, and qualified workers 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.
Counting employees to determine coverage under the FFCRA.
Employers should use the number of employees on the day the employee’s leave would start to determine whether the employer has fewer than 500 employees for purposes of providing expanded family and medical leave and paid sick leave. The language found in the FMLA’s definition for employer does not apply to the Emergency Family and Medical Leave Expansion Act for purposes of expanded family and medical leave.
COVID-19 related leave after already using FMLA leave.
An eligible employee is entitled to take paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave the employee may have previously taken under the FMLA. Moreover, this paid sick leave is in addition to other leave provided under federal, state, or local law; an applicable collective bargaining agreement; or the employer’s existing company policy.
If the employer was covered by the FMLA prior to April 1, 2020, the employee’s eligibility for expanded family and medical leave depends on how much FMLA leave he or she has already taken during the applicable 12-month period. During a 12-month period, employees may take only a combined total of 12 workweeks of FMLA leave for traditional FMLA-qualifying reasons and for child care as provided under the Emergency Family and Medical Leave Expansion Act. An employee who has already taken 12 workweeks of FMLA leave during the applicable 12-month period prior to requesting expanded family and medical leave will not be entitled to expanded family and medical leave during that 12-month period.
If the employee takes paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, those two weeks count toward the 12 workweeks in the 12-month period.
This analysis does not apply if the employer first becomes covered under the FMLA on April 1, 2020.
Definition of a “health care provider.”
The new guidance defines a “health care provider” who is not entitled to paid sick leave and/or expanded family and medical leave under the FFCRA, as any employee employed at any:
- doctor’s office, hospital, health care center, or clinic;
- post-secondary educational institution offering health care instruction;
- medical school;
- local health department or agency;
- nursing or retirement facility or home;
- home health care provider;
- any facility that performs laboratory or medical testing;
- pharmacy; or
- any similar institution, employer or entity, permanent or temporary.
This definition of a “health care provider” includes any individuals employed by an entity that contracts with the above institutions, employers, or entities to provide services or to maintain the operation of the facility, such as anyone employed by an 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.
To minimize the spread of COVID-19, the DOL encourages employers to be “judicious” when using this definition to exempt health care providers from provisions of the FFCRA.
Definition of “emergency responder.”
An emergency responder who may be excluded from paid sick leave or expanded family and medical leave by his or her employer under the FFCRA, 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 category 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.
As with employers of “health care providers,” the DOL also encourages employers of “emergency responders” to be judicious when exempting their employees from the provisions of the FFCRA.
Public sector employees’ right to take sick leave under the FFCRA.
Paid sick leave under the Emergency Paid Sick Leave Act: The DOL states that public sector employees are generally entitled to paid sick leave if they work for a public agency or other unit of government unless the employee is a health care provider or emergency responder.
Paid family and medical leave under the Emergency Family and Medical Leave Expansion Act: The DOL states that if the employee is a federal employee, he or she is not likely entitled to expanded family and medical leave, as the Emergency Family and Medical Leave Expansion Act only amended Title I of the FMLA (federal employees are typically covered by Title II of the FMLA). Likewise, if the public sector employee is a health care provider or emergency responder, he or she may be excluded by the employer from being able to take expanded family and medical leave under the FFCRA.
We will continue to monitor the situation as we await the DOL’s additional guidance and official regulations. As the situation continues to rapidly evolve, please keep checking our blog for employment-related developments and our Coronavirus (COVID-19) Resource Center for continued advice on the numerous issues that we are following.