As the April 1, 2020 effective date for the Families First Coronavirus Response Act quickly approaches, the U.S. Department of Labor (DOL) continues to release guidance via a Q&A page through which the DOL illustrates how it will enforce the Act.
Some of this guidance has been discussed in earlier posts which you can find here and here. In addition, the DOL has provided the following new information.
Which Employees Are Eligible for Paid Sick Leave and Expanded Family and Medical Leave?
If an employer is covered by the FFCRA, all of its employees are eligible for paid sick leave and expanded family and medical leave, including full-time and part-time employees, and employees working on site temporarily and/or through a temp agency. Employers are not required to provide paid sick leave and expanded family and medical leave to emergency responders, health care providers, and certain employees employed by businesses with fewer than 50 employees.
The one difference regarding an employee’s eligibility for paid sick leave versus expanded family and medical leave pertains to length of employment. Employees are eligible for paid sick leave regardless of length of employment, while employees are only eligible for expanded family and medical leave when they have been employed for at least 30 calendar days.
Who is a Son or Daughter for Purposes of Paid Sick Leave and Expanded FMLA Leave?
The FFCRA provides paid sick leave and expanded family and medical leave to care for a son or daughter who is without school or childcare because of COVID-19. A son or daughter is an employee’s own child, including biological, adopted or foster children, as well as stepchildren, legal wards, or children for whom the employee has day-to-day responsibilities to care for or financially support. The FFCRA’s definition of children also includes children above the age of 18 who:
- Have a mental or physical disability
- Are incapable of self-care because of that disability
Who is a Health Care Provider Whose Advice Can Be Relied on to Self-Quarantine as a Qualifying Reason for Paid Sick Leave?
A health care provider whose advice can be relied upon to self-quarantine includes a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of FMLA.
Small Business Exemption
One of the most important points of the DOL’s most recent guidance is how certain small businesses with fewer than 50 employees can qualify for an exemption from the Act’s paid leave and emergency FMLA obligations. The FFCRA provides that a business may be exempted if an employee requests paid sick leave or expanded FMLA leave to care for a son or daughter who is without school or childcare because of COVID 19 and an authorized officer of the business determines that offering leave would jeopardize the viability of the small business because:
- Offering 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.
- The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would create 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.
- 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.
Health Care Provider and Emergency Responder Exemptions
The FCCRA provides that “health care providers” and “emergency responders” may be excluded by employer’s choice from the FFCRA’s paid sick leave or expanded family and medical leave benefits.
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. This includes anyone 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. This also includes 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, and anyone determined by the highest official of a state or territory, including the District of Columbia, to be necessary to the state’s response to COVID-19.
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 institutional personnel
- Fire fighters
- Emergency medical services personnel
- Public health personnel
- Emergency medical technicians
- Emergency management personnel
- 911 operators
- Public works personnel
- 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
- 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 or territory’s response to COVID-19
The DOL’s guidance specifically encourages employers to be judicious in how they apply the definition of a “health care provider” or “emergency responder” to minimize the spread of COVID-19.
Determining the expanded FMLA Leave Amount for Employers Covered Before April 1, 2020
If an employer was covered by the FMLA before April 1, 2020, an employee’s eligibility for expanded family and medical leave depends on how much leave the employee has already taken during the 12-month period that the employer uses for FMLA leave. An employee may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If an employee has taken some, but not all, 12 workweeks of leave under FMLA during the current 12-month period, the employee may take the remaining portion of leave available. If the employee has already taken 12 workweeks of FMLA leave during this 12-month period, the employee may not take additional expanded and family medical leave.
If an employee takes some, but not all 12 workweeks of expanded family and medical leave by Dec. 31, 2020, the employee may take the remaining portion of FMLA leave for a serious medical condition, as long as the total time taken does not exceed 12 workweeks within a 12-month period.
Balancing FFCRA Paid Sick Leave with Other Paid Sick Leave and Expanded FMLA Leave
Paid sick leave offered under the FFCRA is in addition to any other benefits provided by the employer, a collective bargaining agreement, or federal, state or local law.
Determining Full-Time and Part Time Employee Status Under the FFCRA’s Paid Sick Leave Provisions
An employee who is normally scheduled for 40 or more hours a week is considered a full-time employee for purposes of determining leave under the paid sick leave provisions of the FFCRA, and employees who work less than that amount on average are considered part-time.
The FMLA expansion does not distinguish between full-time and part-time employees. However, the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.
Group Health Coverage During FFCRA Leave
The Guidance makes clear that employees on an employer-provided group health coverage plan are entitled to group health coverage during paid sick leave on the same terms as if they continued to work. Therefore, the requirements for eligibility, including any requirement to complete a waiting period, apply in the same way as if the employee continued to work, meaning that days an employee spends on paid sick leave count towards completion of the waiting period.
Infringing on Employee Rights Under the Act
If an employee of a private employer believes that their employer is infringing on their rights to use paid sick leave or expanded family and medical leave, the DOL encourages them to first try to resolve the issue with the employer, but regardless of whether the employee discusses the matter with the employer, the DOL encourages calling the DOL Wage & Hour Division at 1-866-4US-WAGE (1-866-487-9243).
The guidance further providers that an employer may not take adverse action against an employee who takes paid sick leave or expanded family and medical leave because of their use of such paid time off. Similarly, an employer cannot take adverse action against an employee because the employee filed a complaint against the employer for interference with these rights or because the employee intends to testify against the employer in any proceeding.
Employees are not, however, protected from employment actions such as layoffs that would have affected the employee regardless of whether the employee took leave. Therefore, an employer may terminate an employee for legitimate business reasons, such as the closure of a worksite, provided that the employer can demonstrate that it would have laid off the employee regardless of whether the employee had taken leave.
An employer may also refuse to return an employee to the same position if the employee is a highly compensated “key” employee as defined in the FMLA, or if the employer has fewer than 25 employees, and the employee took time to care for a son or daughter whose school was closed, or whose child care provider was unavailable, and all four of the following conditions are met:
- The position no longer exists because of economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of leave
- The employer made reasonable efforts to restore the employee to the same or equivalent position
- The employer makes reasonable efforts to contact the employee if an equivalent position becomes available
- The employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after leave began, whichever is earlier
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.