March 30, 2020
With April 1, 2020 right around the corner, late Saturday night, March 28, 2020, the U.S. Department of Labor (DOL) issued its third round of additional guidance and FAQs to the Families First Coronavirus Response Act (the Act), adding 22 more FAQs (i.e., 38-59) to its existing guidance.
Of all the prior guidance issued by the DOL, this round of guidance appears to be the most helpful to employers. This round of guidance provided much needed additional clarity on how to implement the new Act and specifically, The Emergency Paid Sick Leave Act (EPSLA) and The Emergency Family and Medical Leave Expansion Act (EFMLEA). Notably, however, the FAQs revise prior guidance as to documentation an employer can require to support and dramatically expand the Act’s exemption for “healthcare providers.” Specifically:
“Health Care Provider” and “Emergency Responder” Defined
The DOL must have read our prior update because in this latest round of guidance, it provided definitions to the terms “health care provider” and “emergency responder” in the context of the Act. Remember that the Act exempts a “health care provider” from the Act and specifically adopts the FMLA’s traditional definition of that term (which basically is limited to providers who can offer a diagnosis of an individual’s condition when she or he is seeking FMLA leave – which excludes nurses, nursing assistants, etc.). In the latest guidance, the DOL has set forth the following definitions:
- The term “health care provider” was given two definitions under the Act:
- As used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, the term means “a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.” In other words, if the provider could complete a traditional FMLA medical certification, the provider is also qualified to determine whether the employee should self-quarantine.
- For the purposes of employees who may be exempted from the requirements of the Act, a health care provider is “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.”
Notably, the DOL goes on to explain that this definition includes
(a) Any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility;
(b) 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; and
(c) 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.
This definition includes many more individuals than many originally anticipated. Given the breadth of this definition, health care employers may potentially exclude all of their employees from the coverage of the Act, even those that are not actually providing health care/treatment (e.g., administrative assistants, accountants, janitors, etc.). While this definition appears to be in keeping with the spirit of the Act, it is, at a minimum, an expansion of the Act and could be read as simply creating a definition of “health care provider” that is not provided for in the Act. In this light, employers should keep in mind that FAQs are considered by courts to be “informal guidance.” While healthcare employers may choose, in the moment, apply the expanded definition of the FAQs, they should do so understanding the potential risk of future litigation.
- The term “emergency responder” is defined as “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,” including, but not limited to the following:
- 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 such 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 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.
These definitions are important because as we know, employers of health care providers and emergency responders may exclude such employees from coverage under the Act.
In our last alert, we reported that the DOL set forth certain documentation requirements for employers under the Act. However, on Saturday night, the DOL changed those requirements. Now, rather than setting forth specific documentation requirements employers had to obtain from their employees and retain, the DOL eliminated those specific requirements and instead said employers should look to certain applicable IRS forms, instructions, and information. However, to date, the IRS has not published any such forms, instructions, or information. Employers are, therefore, left mostly in the dark at this moment as to the forms which they can require from employees seeking EFMLEA or EPSLA leave.
The DOL did, however, retain its prior guidance that, if an employee takes leave under the EFMLEA or EPSLA to care for his or her child whose school or place of care is closed, or child care provider is unavailable, employers may also require the employee to provide it with appropriate documentation in support of such leave, to the extent permitted under the certification rules for traditional FMLA leave requests.
Moreover, even though the DOL removed its requirement under the EPSLA that employers must require certain documentation for the other five reasons for leave, it appears that employers may still require their employees to provide appropriate documentation supporting the need for leave.
Lastly, the DOL now makes it clear that employers are free to deny leave under the Act for any employee who fails to provide “materials sufficient to support the applicable tax credit.”
Who is a “Son or Daughter”?
The Act provides for paid leave when employees are unable to work or telework to care for their “son or daughter” where their school is closed or child care provider is unavailable due to COVID-19. The DOL’s guidance explains that under the Act a “son or daughter” is an employee’s own child, which includes his/her biological, adopted, or foster child, his/her stepchild, a legal ward, or a child for whom the employee is standing in loco parentis (i.e., someone with day-to-day responsibilities to care for or financially support a child). That makes sense. However, the DOL added that under the Act a “son or daughter” is also an adult son or daughter (i.e., 18+), who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability. This expanded definition likely will make more employees eligible for leave under the Act.
Small Employers and Employee Job Restoration
While the EFMLEA did state that small employers (i.e., employers with fewer than 25 employees) may deny job restoration to employees when taking EFMLEA under certain conditions, the DOL provided some additional guidance on this point. Specifically, the DOL states that small employers may deny the employee’s return to the job following EFMLEA only if all of the following are met:
- The position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of EFMLEA leave;
- The employer made reasonable efforts to restore the employee to the same or an equivalent position;
- The employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
- The employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the EFMLEA leave concludes or the date 12 weeks after the EFMLEA began, whichever is earlier.
Also, just like with “traditional” FMLA leave, all employers may deny job restoration to “key” employees (i.e., salaried employees who are among the highest paid 10% of all the employer’s employees within 75 miles of the employee’s worksite).
Maximum of 12 Weeks of FMLA Leave
Some questioned whether an employee was permitted to take 12 weeks of “traditional” FMLA leave and 12 weeks of EFMLEA leave. Putting an end to those questions, the DOL made it clear that an employee is only entitled to take a maximum of 12 weeks of FMLA leave total. Therefore, if an employee has already used 12 weeks of traditional FMLA leave this year, that employee may not take EFMLEA this year. Also, employees who have taken 10 weeks of traditional FMLA leave may only take 2 weeks of EFMLEA.
Alternatively, if an employee takes 12 weeks of EFMLEA, he or she may not take traditional FMLA leave later in the year if, for instance, that employee has to have surgery.
Note, while the DOL has not explicitly stated as much, it appears that for purposes of determining whether an employee has exhausted his/her FMLA/EFMLEA entitlement, employers should look to the 12-month period the employer has previously chosen and regularly maintained under the FMLA, such as a rolling year, the calendar year, etc.
The DOL did, however, make it a point to note that employees are entitled to EPSLA leave regardless of how much FMLA/EFMLEA leave an employee has utilized. Per the DOL, paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 weeks in the 12-month period cap. As such, employees may technically take 14 weeks of leave to care for their child when their school has been closed or the child’s care provider are unavailable due to COVID-19. For instance, an employee would get 14 weeks of leave in two situations:
- As we all know, employees are able to take sick leave under the EPSLA for five reasons that are not related to their child’s school being closed or child care provider being unavailable. As such, (and assuming an employee has not used any “traditional” FMLA leave), an employee can take 2 weeks of EPSLA leave because, for instance, he contracts COVID-19, and then take 12 weeks of EFMLEA (only 10 of which would be paid) leave after he recovers, for a total of 14 weeks of leave.
- The EFMLEA and the DOL also make it clear that during the initial 2 weeks of EFMLEA leave, employees may use other paid leave entitlements (i.e., vacation or PTO time) and are not necessarily required to use EPSLA time to make those initial 2 weeks of EFMLEA leave paid time. As such, an employee could take 12 weeks of EFMLEA leave, using his accrued vacation time to make the first 2 weeks paid, and then use 2 weeks of EPSLA paid sick leave after returning from EFMLEA leave, for a total of 14 weeks of paid leave.
EFMLEA and EPSLA Leave is On Top of State & Local Leave Entitlements
Even though this was written into the Act, the DOL apparently wanted to make it abundantly clear that any leave under the EFMLEA and EPSLA is in addition to other leave provided under Federal, State, or local law, any applicable CBA, or an employer’s existing policies. This means that employees may be entitled to more than the 12 (or 14) weeks paid leave called for under the Act. Note, this is particularly important to employers in Pittsburgh, Philadelphia, and New Jersey where there are state/local laws requiring paid sick leave. Per the DOL’s guidance, the Act does not touch those paid sick leave entitlements, nor can they run concurrently.
Full- vs. Part-Time Employee Defined
The DOL provided definitions regarding who is a full-time employee and who is a part-time employee under the Act. Specifically, the DOL said that full-time employees are those employees who are normally scheduled to work 40 or more hours in a week. On the other hand, part-time employees are all those employees who are not full-time employees. This is pretty straightforward but does provide clarification as to how much pay to provide to employees under the EPSLA and EFMLEA.
Exemptions for Small Employers
The DOL also listened to us when we asked whether it would provide clarification to small employers and how they would be exempt under the Act. Specifically, the DOL has exempted small employers (i.e., those with fewer than 50 employees), including religious and nonprofit organizations, from providing EFMLEA and EPSLA leave (but only for reason #5 – i.e., leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons) if the employer’s authorized officer determines that one of the following applies:
- The provision of paid leave described above 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;
- The absence of the employee or employees 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
- 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 leave, and these labor or services are needed for the small business to operate at a minimal capacity.
As noted, the DOL has explicitly stated that small employers are only exempt from providing EFMLEA and EPSLA leave to their employees for school closures and child care reasons (i.e., all leave under the EFMLEA and only reason #5 under the EPSLA). Therefore, small employers must still provide EPSLA leave for the remaining five reasons under the EPSLA.
While this most recent round of guidance goes a long way to answering many employer questions, there are still some outstanding questions (e.g., do shelter-in-place or stay-at-home orders (such as Governor Wolf’s March 23, 2020 stay-at-home order) constitute a COVID-19 related quarantine or isolation order such that an employee may take EPSLA leave during this time period?).
For now, we will have to wait and see, but our Employment & Employee Relations Practice is here to answer any of your questions related to the Act and will continue to keep you informed on any actions the government takes as it relates to COVID-19 that will impact employers.
- DOL Issues Second Round of Guidance on Families First Coronavirus Response Act
- DOL Issues Initial Guidance on Families First Coronavirus Response Act and Publishes Required Model Notice >
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel
About the Authors:
Sidney R. Steinberg's practice involves virtually all aspects of labor and employment law, including substantial litigation experience defending employers against employment discrimination and wage and hour disputes in federal and state courts. He also has experience in representing employers before federal, state and local administrative agencies, including the EEOC, the Department of Labor and the National Labor Relations Board, as well as in arbitration proceedings. Learn More.
David E. Renner represents and counsels employers in a wide variety of employment matters, including wage and hour audits and class/collective actions, anti-discrimination and equal employment opportunity policies, affirmative action planning, trade secret/restrictive covenants, Office of Federal Contract Compliance Programs (OFCCP) audits and investigations, Title III of the Americans with Disabilities Act (ADA) relating to public accommodations, and labor relations. Learn More.