The U.S. Department of Labor’s Wage and Hour Division (“DOL”) issued a third installment of new Q&As regarding the Families First Coronavirus Response Act (“the Act”) on March 28, 2020. Foley’s Coronavirus Task Force outlined the DOL’s initial March 24, 2020 guidance on the Act here and its March 26, 2020 Q&As here.
The Act takes effect April 1, 2020 and covers private employers with fewer than 500 employees (and certain public employers); and provides varying amounts of paid leave in the form of Emergency Paid Sick Leave (PSL) and Emergency Family and Medical Leave (EFML).
The Act provides that the DOL may issue regulations exempting small businesses (fewer than 50 employees) from the PSL and EFML payment obligations for employees needing leave due to school/place of care closures and/or child care provider unavailability for COVID-19 related reasons, when doing so would jeopardize the viability of the small business as a going concern.
To date, the DOL has not issued formal regulations, but the updated Q&A state that “a small business may claim this exemption if an authorized officer of the business has determined that:
Employees are entitled to PSL regardless of how much leave they have taken under the FMLA.
However, in a very significant clarification, the DOL has taken the position that – for employers who are subject to the FMLA before April 1, 2020 – an employee’s eligibility for EFML depends on how much conventional FMLA leave the employee has already taken during the 12-month period that the employer uses for FMLA leave. In other words, the DOL states that an employee is entitled only to 12 weeks total of EFML plus conventional FMLA leave in the 12-month period. For example, assuming a 12-month period of January to December, an employee who took three weeks of FMLA leave for a surgery in January would only be eligible for nine weeks of EFML to use during their children’s school closure related to COVID-19. Likewise, an employee who has not used any conventional FMLA leave as of April 1, 2020, but who then takes six weeks of qualifying EFML, would only have six weeks of conventional FMLA remaining in the applicable 12-month period.
Note that given the clear intent of the Act to provide EFML for an entirely different purpose than FMLA leave, we recommend proceeding with caution in limiting employees’ EFML entitlement based on the amount of FMLA leave taken.
The DOL guidance clarifies that “son or daughter” refers to an employee’s own child, which includes biological, adopted, foster, and step children; legal wards; and children for whom the employee is standing “in loco parentis,” which essentially means having day-to-day responsibilities to care for or financially support the child(ren). The fact that a child may have a biological parent at home does not mean that an employee cannot stand in loco parentis for that same child. In addition, the DOL clarified that children over 18 years old may be covered under the Act if they have a mental or physical disability which renders them incapable of self-care.
The Act’s leave provisions refer to healthcare providers in two respects: (1) employees who have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19, such that they are eligible for PSL; (2) employers of employees who are healthcare providers may choose to exempt those employees from the Act’s leave provisions. In another important clarification, the DOL has indicated that the term “healthcare provider” means two different things in these two scenarios
A “healthcare provider” whose advice to self-quarantine due to COVID-19 concerns can be relied on to trigger PSL obligations means a licensed doctor of medicine, nurse practitioner, or other healthcare provider permitted to issue a certification for purposes of the FMLA.
By contrast, a “healthcare provider” whose employer may choose to exclude them from the PSL and EFML requirements of the Act is much broader. It 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 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.”
Considering the need for an all-hands-on-deck healthcare response to the pandemic, this broadened definition makes sense. That said, the DOL encourages employers “to be judicious” when using this definition to help prevent the spread of COVID-19.
The Act also allows employers to exclude “emergency responders” from the PSL and EFML requirements. The DOL guidance defines an emergency responder for this purpose as “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.”
Again, the DOL reminds employers to be judicious with this definition.
The EFML provisions do not distinguish between full- and part-time employees, although the number of hours an employee normally works each workweek will impact the amount of paid leave to which the employee is eligible.
With respect to the PSL, a full-time employee is one who is normally scheduled to work 40 or more hours per week. A part-time employee is one normally scheduled to work fewer than 40 hours per week.
Employees are generally entitled to be restored to the same or an equivalent position upon return from either emergency paid sick leave (PSL) or emergency family and medical leave (EFML). The Act also contains an anti-retaliation provision. However, the DOL guidance clarifies that employees are not protected from “employment actions, such as layoffs, that would have affected” the employees regardless of whether they took leave. The DOL specifically cites layoffs due the closure of a workplace as one such example. In addition, other exceptions to the return-to-work requirement include highly compensated “key” employees as defined under the FMLA, and employees of certain small employers (employers with fewer than 25 employees) under very specific circumstances of economic hardship outlined in the Act.
As we previously noted, the COVID-19 pandemic presents an unprecedented and still-evolving legal landscape for employers. Therefore, the above interpretation is based on Foley & Lardner’s best judgment of available information in a rapidly changing and uncertain environment, and to that end we cannot guarantee that governmental authorities concur with the above. For more information about recommended steps, please contact your Foley relationship partner. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the CDC and the World Health Organization.