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Labor Department Provides New Details Regarding Implementation of Emergency Sick and FMLA Leave

Higher Education Labor & Employment

Over the weekend (March 28 and 29, 2020), the United States Department of Labor updated its Question and Answers webpage providing guidance regarding implementation of the paid sick and FMLA leave provisions of the Families First Coronavirus Response Act (“FFCRA”) In our previous alert, we detailed the key points from the guidance available on March 24, 2020. The updated guidance answers a number of additional questions about how the new mandates for employers with fewer than 500 employees and government employers will be interpreted and implemented. Highlights of this new guidance are included below. The FFCRA leave provisions take effect this Wednesday, April 1, 2020.

Small Employer Exemption: The new guidance provides some additional details on this exception for employers with fewer than 50 employees. First, the DOL states that covered employers include nonprofit and religious organizations. (The guidance does not mention small government employers.) The exemption applies only to leave taken due to the need to care for a child whose school or place of care is closed due to COVID-19 – not to other reasons covered by the emergency sick leave provisions. The exemption is available only if an “authorized officer of the business” determines that one or more of the following three conditions applies to the business:

  1. The provision of paid sick leave or expanded FMLA 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;
  2. The absence of the employee(s) requesting paid sick leave or expanded FMLA 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
  3. There are not sufficient workers who are able, willing, or 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 FMLA leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Employers who believe they qualify for the exemption should document the reasons why their business meets the criteria above. As noted last week, according to the guidance, this information will not be sent to the DOL, suggesting that there is no application process for the exemption, but that employers may be subject to compliance reviews after the fact.

Employees are not Entitled to Leave for Hours They Are Not Scheduled to Work: The new guidance confirms that if an employer’s business closes, no matter how short the duration, its employees are not entitled to leave during the period of the closure. Likewise, employees who are furloughed or whose hours are reduced by their employer for business or operational reasons are not entitled to paid sick leave or expanded FMLA leave or any hours that they would not otherwise work due to the furlough or reduction in hours.

Limited Allowance for Intermittent Leave: The DOL’s new guidance clarifies that employees may use leave under the FFCRA intermittently in some circumstances, but only with their employer’s agreement. Subject to their employer’s agreement, an employee may use leave intermittently to care for a child whose school or place of care is closed due to COVID-19. Employees may also use leave intermittently while teleworking – again, only if their employer agrees. Intermittent leave is not permitted if an employee is not permitted to telework and is taking leave under the FFCRA for reasons other than caring for a child whose school or place of care is closed due to COVID-19. 

If an employee is teleworking, intermittent leave can be taken in any increment that the employer and employee agree upon.  If the employee must report to a worksite, intermittent leave must be taken in full day increments.

Certification Requirements: The DOL guidance specifies that employees may be required to provide employers with documentation supporting their need for leave “as specified in applicable IRS forms, instructions, and information.” Employers may deny leave to employees who fail to provide such documentation. To date, we have not seen any “forms, instructions, or information” from the IRS.

The guidance also specifies that employers may require employees to provide “additional [sic] in support of your expanded family and medical leave taken to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons.” As examples the DOL identifies “a notice of closure or unavailability” from a child’s school, place of care, or child care provider, “including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider.”

The DOL also makes clear that all other certification requirements for FMLA leave for existing (non-COVID-19) reasons continue to apply. For example, if an employee seeks leave because his or her medical condition related to COVID-19 rises to the level of a serious health condition, the employee may still be required to comply with the typical certification process for FMLA leave. However, the existing FMLA rules may require employers to provide extensions or exceptions to employees who cannot provide a timely certification due to the ongoing public health situation.

Health Care Providers Who Can Advise Employees to Self-Quarantine: One qualifying reason for emergency paid sick leave under the FFCRA is that the employee has been advised by “a health care provider” to self-quarantine for COVID-19-related reasons. The DOL’s guidance defines a health care provider for this purpose as a licensed doctor, nurse practitioner, or other health care provider permitted to issue a certification for purposes of FMLA leave.

Definitions for the Health Care Provider and Emergency Responder Exclusions: The FFCRA provides that employers can elect to exclude “health care providers” and “emergency responders” from the group of employees entitled to leave under the FFCRA. The DOL guidance adopts an extremely broad definition of “health care provider” for this purpose. It includes: “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,” including permanent or temporary institutions, facilities, locations, or sites where medical services are provide that are similar to such institutions.

The DOL Guidance also includes a new definition of “emergency responder,” stating that “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.” The guidance goes on to state that 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.” The guidance also provides that “emergency responder” 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.”

Covered employers are strongly encouraged to review the entire “Questions and Answers” page, and to monitor it regularly for additional updates. We will continue to provide further information as it becomes available. In the meantime, if you have questions do not hesitate to reach out to Tracey Truesdale, Bill Pokorny, Erin Fowler, or any other Franczek attorney.