On March 28, 2020, the Department of Labor ("DOL") provided an additional update to its Q&As, adding questions 38-59 regarding the Families First Coronavirus Response Act ("FFCRA"). Below is a brief summary of the relevant information provided in the most recent update.
Definitions
The DOL states that, assuming you are a "covered employer," eligible employees are defined using the definition provided by the Fair Labor Standards Act ("FLSA"). (Q&A 38). The DOL clarifies those who are qualified employers. (Q&A No. 39). The DOL provides a definition for "son or daughter" for purposes of FFCRA leave benefits. (Q&A No. 40). Specifically, the DOL provides that a "'son or daughter' is your own child, which includes biological, adopted or foster child, your stepchild, a legal ward, or a child for whom you are standing in loc parentis." Of note, the DOL clarified that an adult child may also qualify where the child has a disability and is incapable of self-care. Prior to the updated guidance, uncertainty surrounded whether an adult child with disabilities could qualify for the E-FMLA benefit. The DOL has now made it clear, however, that adult children with disabilities can qualify for that benefit.
For purposes of the Emergency Paid Sick Leave benefit, the DOL defines "full-time employee" as an employee who is normally scheduled to work 40 or more hours per week. (Q&A Nos. 48-49).
"Stacking" Leave Under FMLA and E-FMLA
The E-FMLA benefit does not add a new entitlement to 12 weeks of leave in addition to FMLA provided and/or taken for other qualifying reasons. Thus, preventing employees from "stacking" leave. Apart from certain military servicemember leaves, an employee is only entitled to 12 weeks of FMLA leave in total during the 12-month period. Therefore, if an employee has already taken all of his or her FMLA leave during this 12-month period, he or she would not be entitled to any additional leave under E-FMLA during the same period. (Q&A Nos. 44-45).
FFCRA Benefits for Health Care Providers and Emergency Responders
Significantly, employees who serve as "health care providers" or "emergency responders" may be excluded from the Act's coverage. In the March 28 update, the DOL provided definitions for "health care provider" and "emergency responder," and it seems that the DOL is now applying a broad interpretation to these exclusions. (Q&A Nos. 56-57). For purposes of employees who may be excluded from FFCRA leave benefits, the DOL defines a "health care provider" as:
[A]nyone 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 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. This also includes 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. This also includes 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.
(Q&A No. 56). Contrary to previous opinions, this expansive definition appears to permit employers to exclude from FFCRA leave benefits all employees of a health care facility, rather than just those employees that provide direct health care.
Again, for purposes of employees who may be excluded from FFCRA leave benefits, the DOL defines "emergency responder" as:
[A]n 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 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. This also includes 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.
(Q&A No. 57). Contrary to previously-held opinion, because this definition includes "individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility," it appears that employers may be allowed to exclude from FFCRA leave benefits most, if not all, employees working for an employer that provides emergency response.
Small Businesses
Lastly, because compliance with the E-FMLA and EPSLA could jeopardize the viability of some small businesses (fewer than 50 employees), the DOL provides guidance as to which small business are exempt from the Acts. (Q&A Nos. 58-59). The DOL explained that a small business may claim this exemption if an "authorized officer of the business" has determined that:
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;
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
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.
(Q&A 58). The DOL further clarified that a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements of if the:
employer employs fewer than 50 employees;
leave is requested because the child's school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.
(Q&A 59).
The DOL again encouraged employers and employees to work together to reach solutions, but also provided employees with contact information if they believe their employer is not complying with the FFCRA's requirements.