U.S. Department of Labor Issues More Guidance in Advance of FFCRA’s April 1, 2020 Effective Date

On Saturday, March 28, 2020, the U.S. Department of Labor (DOL) issued additional guidance, in the form of “Frequently Asked Questions,” related to the Families First Coronavirus Response Act (FFCRA). The DOL previously provided guidance discussed here: U.S. Department of Labor Publishes Guidance for Paid Sick Leave and Paid FMLA Compliance and Additional Guidance for FFCRA Paid Sick Leave and Paid FMLA Compliance.

The following are some important highlights from the latest guidance provided by the DOL:

 1.  Amount of Leave Available Under Expanded Family and Medical Leave Act

In the newest set of Frequently Asked Questions posted by the DOL, the Department clarified that, if an employer was covered by the FMLA prior to April 1, 2020, the 12 workweeks of expanded family and medical leave provided for in the Emergency Family and Medical Leave Expansion Act is not in addition to the 12 workweeks available under the preexisting Family and Medical Leave Act. Rather, an employee is only entitled to take a total of 12 workweeks for FMLA or expanded family and medical leave during a 12-month period. For example, if an employee took 2 weeks of FMLA leave in January 2020, that employee is only eligible for a maximum of 10 weeks of expanded family and medical leave. 

An eligible employee, however, is entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave he or she has taken under the FMLA.

 2.  Availability of Emergency Paid Leave Act and Other Paid Sick Leave

Leave taken under the Emergency Paid Sick Leave Act does not count against other types of paid sick leave available under State or local law (such as the Chicago Paid Sick Leave Ordinance or Cook County Earned Sick Leave Ordinance), or an employer’s policy. Paid sick leave under the Emergency Paid Sick Leave Act is in addition to other sick leave provided.

 3.  Exemptions

a. Small Business Exemption

An employer with fewer than 50 employees (a “small business”) is exempt from providing paid sick leave and expanded family and medical leave due to school/place of care closure or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business. A small business may claim this exemption if an authorized officer has determined:

I. The provision of 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;

II. The absence of the employee or employees 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 their specialized skills, knowledge of the business, or responsibilities; or

III. 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.

It is important to note that only one of these factors is required in order to claim the exemption. This flowchart further explains the small business exemption:

b. Health Care Providers

“Health care providers” who may be exempted from paid sick leave or expanded family and medical leave by their employers under the FFCRA include: 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 any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This definition also includes any individual 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.

c. Emergency Responders

“Emergency responders” who may be exempted from paid sick leave or expanded family and medical leave by their employers under the FFCRA are employees who are necessary for the provision of 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 as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

d. Employees of the Federal Government

Federal employees are generally entitled to paid sick leave under the Emergency Paid Sick Leave Act but are not entitled to expanded family and medical leave. The DOL guidance, however, suggests that Federal employees should “seek guidance” from their respective employers as to their eligibility to take paid sick leave or expanded family and medical leave.

The full Department of Labor guidance, including the Frequently Asked Questions issued on March 28, 2020 (numbers 38-59) can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions