On March 28, 2020, the U.S. Department of Labor (DOL) released its third batch of Q&As (#38-59) concerning the federal Families First Coronavirus Response Act (FFCRA). Effective April 1, 2020, the FFCRA will require private employers with 499 or fewer employees, and certain public employers, to provide covered employees emergency paid sick leave (EPSL) and emergency unpaid and paid family leave (FMLA+). Additionally, the DOL made some notable revisions and clarifications to previously issued Q&As (#1-37).

DOL Publishes New Q&As (#38-59)

Small Business (Fewer than 50 Employees) Exemption for School Closures / Childcare Clarified: The DOL has clarified that small employers with fewer than 50 employees, including religious or nonprofit organizations, may claim this exemption if their authorized officer determines one of the following applies:

• Providing FMLA+ and/or EPSL childcare leave (school closures and childcare unavailability) would cause the business’s expenses and financial obligations to exceed its revenues and cause the business to cease operating at a minimal capacity; 
• The employee’s absence would entail a substantial risk to the business's financial health or operational capabilities because of specialized skills, knowledge of the business, or responsibilities the employee possesses; or 
• There are insufficient workers who are able, willing, and qualified to perform the labor or services provided by the employee requesting childcare leave, and these labor or services are needed for the business to operate at a minimal capacity.

The DOL indicates that school closures/child care reasons for FFCRA leave (which is reason #5 for EPSL leave and the only reason FMLA+ is available) are the only reasons for which this exemption is available (if one of the above criteria is met). This means that smaller employers with fewer than 50 employees, even those that can claim this exemption, are NOT exempt from providing EPSL for reasons #1, 2, 3, 4 and 6 (i.e., the medical/family care related reasons for EPSL).¹

Broad Definition of Health Care Provider & Emergency Responder for Employee Exception: Employers that employ health care providers and emergency responders will likely be relieved to see the DOL’s clarification about the meaning of the statutory exemption for those employees that employers can elect to exclude from coverage, who 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.

The definition also includes:

any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions [sic] 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.

To help minimize the spread of COVID-19, the DOL encourages employers to be judicious when applying its new definitions for those who qualify as a "health care provider" or "emergency responder" employee for whom they are electing not to provide emergency leave.

Additionally, for purposes of emergency responder employees that employers can elect to exclude from coverage, the DOL explains:

[A]n 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 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.

Health Care Provider who Can Certify Need for Leave Unchanged: The DOL reinforces that the definition of "health care provider” for purposes of advising an employee or family member to self-quarantine due to COVID-19 concerns and/or from whom employees can seek medical diagnosis when experiencing COVID-19 symptoms, is that definition under the existing FMLA (29 U.S.C. § 2611(6); 29 C.F.R § 825.125).

Total FMLA Leave a "Hard 12" but Total FFCRA Leave Could Be 14: The DOL clarifies FFCRA emergency family leave provisions do not change the overall amount of FMLA leave employees can take during an applicable FMLA 12-month period. For example, if during an applicable FMLA 12-month period an employee takes 12 weeks of FMLA "classic" leave, during that same FMLA 12-month period, FMLA "plus" leave is unavailable because the employee has exhausted 12 weeks of FMLA leave (though the DOL notes these employees could use emergency paid sick leave for child care leave). Similarly, during a single FMLA 12-month period, an employee can use a combination of FMLA "classic" and "plus" leave and max out at 12 weeks.

However, under at least two scenarios, an employee might be able to use 14 weeks of FFCRA leave. First, an employee can use 80 hours (or the proportionate equivalent) of EPSL for non-childcare purposes (2 weeks). Assuming the employee has not used any FMLA leave (“classic” or “plus”) during the applicable FMLA 12-month period, the employee can then take up to 12 weeks of FMLA+ childcare leave (2 weeks + 12 weeks = 14 weeks). Second, during the initial unpaid 10-day period of FMLA+ leave, the employee can use pre-existing, non-FFCRA employer-provided benefits instead of EPSL benefits (2 weeks). The employee gets up to another 10 weeks of FMLA+ paid childcare leave (2 weeks + 10 weeks = 12 weeks). After that, assuming no EPSL was used to date, the employee could use EPSL childcare leave for an additional two weeks (2 weeks + 10 weeks + 2 weeks = 14 weeks).

State or Local Leave in Addition to EPSL and FMLA+: The DOL has made clear that any leave taken under EPSL and/or FMLA+ is in addition to any other forms of sick/personal leave the employee has earned under an increasing number of state and local paid leave laws and ordinances offering similar protections. Thus, FFCRA does not touch these other leave entitlements, which means the employee's actual leave entitlement could exceed leave allowed under EPSL and FMLA+.

“Full-Time” More Clearly Defined: The amount of EPSL employees receive under the FFCRA depends on whether they are "full" or "part" time; however, the law does not define the terms. In this new Q&A guidance, the DOL makes clear that "full-time" employees for EPSL purposes are those who normally are scheduled 40 or more hours per week. An employee who is not "full" time is "part" time, and that employee receives a number of emergency paid sick leave hours equivalent to the number of hours the employee works on average over a two-week period. The DOL reminds employers that under FFCRA, FMLA+ “does not distinguish between full- and part-time employees, but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.”

Job Restoration Rights Expand & Contract: Although the FFCRA discusses job restoration rights in the FMLA+ context only, the DOL says job restoration rights will be available to employees who take EPSL as well. Specifically, if applicable, employers must provide employees using EPSL or FMLA+ the same or equivalent job they held before taking leave ("classic" FMLA job restoration rules). The DOL reinforces, however, that if an employer lays off an employee for a legitimate business reason during leave, the employee does not have such a right to reinstatement.

Additionally, the DOL clarifies employers can deny reinstatement to the same or equivalent position to an individual who qualifies as an FMLA "key" employee (salaried employee who is among the highest-paid 10% of all the employer's employees within 75 miles of the employee's worksite), or who works for an employer with 24 or fewer employees and takes school closure / childcare leave, and all four of the following hardship conditions exist:

1. The position no longer exists due to economic or operating conditions that affect employment and are due to COVID-19-related reasons during the leave period;
2. Employer made reasonable efforts to restore the employee to the same or an equivalent position;
3. Employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
4. Employer continues to make reasonable efforts to contact the employee for one year, beginning on the date COVID-19 leave ends or the date 12 weeks after leave began (whichever is earlier).

Definition of Child: Under both the EPSL and FMLA+ entitlements, employees can take leave to care for a child whose school or place of childcare closes, or whose childcare provider is unavailable, due to COVID-19. Although the FMLA+ provisions reference a child under 18 years of age, the EPSL provisions incorporate the broader definition under the pre-FFCRA FMLA. In a new Q&A, the DOL clarifies that, for both EPSL and FMLA+, the broader FMLA definition will apply, so the definition of child under the FFCRA will also include a child 18 years of age or older with a mental or physical disability who is incapable of self-care due to the disability.

Emergency Leave Counts Toward Health Coverage Eligibility: The DOL clarifies that, for employees completing an eligibility period before they can receive employer-provided group health coverage, the time they take FFCRA leave instead of actively working nevertheless counts towards satisfying the eligibility period requirements.

DOL Revises and Clarifies Previously Issued Q&As (#1-37)

Business Size Requires a "Live" Calculation: The FFCRA's emergency leave provisions apply to private employers with 499 or fewer employees, but the law does not say what time period employers must use to make this calculation. The DOL says employers "should use the number of employees on the day the employee’s leave would start." For some employers, a "live" calculation might prove difficult. This requires an employer to know how many employees it will have on a future date, which, these days, might be difficult to predict. Additionally, the date-of-absence calculation standard will require employers to which the law will not apply on April 1 to monitor employee numbers because, if employee numbers drop below 500, the law will apply during the time they employ 499 or fewer employees; and if numbers later increase to 500 or more employees, the law will not apply (again).

Eligibility of Public Employees for FFCRA: The DOL clarifies that most non-federal public employees are eligible to take paid leave under FFCRA (subject to any existing individual eligibility criteria required by EPSL or FMLA+). However, federal employees may only be entitled to EPSL because FFCRA only amended Title I of the FMLA, which does not apply to federal employees (Title II of the FMLA applies to this group and is governed by the Office of Management and Budget).

Regular Rate: The DOL clarifies that employers must include commissions, tips, or piece rate compensation in regular rate calculations to the extent the FLSA regular rate requires inclusion, e.g., if an employer does not apply a tip credit toward payment of the minimum wage for FLSA tipped employees, the regular rate need not include tips customers provide these employees.

Documentation of Qualifying Need for FFCRA Leave: The DOL eliminates much of its discussion concerning the specific types of documentation to support a leave request under EPSL and FMLA+, pointing employers instead to applicable IRS forms and information. As of the publication of this ASAP, the IRS does not appear to have published guidance for employers on this issue, but we expect it will do so shortly. For school closures and childcare-related need for leave, the DOL indicates that additional documentation may be required beyond what "conventional" FMLA allows—such as a notification of such school closure, etc. But all indications seem to suggest that for medically necessary reasons for COVID-19 (EPSL reasons #1, 2, 3, 4, and 6), employers may still request appropriate supporting documentation, although given current realities, employers may find they need to, as a practical matter, relax traditional documentation standards they might impose under normal circumstances. Additionally, the DOL now says employers need not provide leave if employees do not provide materials sufficient to support a tax credit.

Topping Up & Tax Credits: The DOL adds text to a Q&A that makes clear that tax relief will be unavailable for emergency paid sick and/or family leave that exceeds the FFCRA limits.

Littler WPI will continue to monitor developments in this area.