The U.S. Department of Labor issued a “Questions and Answers” document providing much-needed clarification of some of the provisions of the Families First Coronavirus Response Act (“FFCRA”). The document is available here. This article addresses just a few of the issues clarified by the guidance. If you are not familiar with the basics of FFCRA, a thorough explanation of the law’s requirements is available here.
According to the guidance, intermittent leave can be provided for paid family and medical leave and for the paid sick leave (when it is being used for child care purposes), but only if the employer agrees. If the employee is taking paid sick leave for purposes other than child care leave, intermittent leave is permitted only if the employee is teleworking, as opposed to working onsite. Otherwise, the leave must be taken in full-day increments.
Documentation of the Need for Leave
If an employee takes paid sick leave under the Emergency Paid Sick Leave Act, the employer must require the employee to provide appropriate documentation in support of the reason for the leave, as will be specified in IRS instructions that have not yet been made available. (This does not apply if the employer does not intend to seek the tax credit.) If the employer intends to claim a tax credit for payment of the sick leave wages, the employer should retain this documentation in its records.
If an employee takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, under the Emergency Family and Medical Leave Expansion Act, the employer must require the employee to provide appropriate documentation in support of such leave. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider. This requirement also applies when the first two weeks of unpaid leave run concurrently with paid sick leave taken for the same reason. If the employer intends to claim a tax credit for payment of the sick leave wages, the employer should retain this documentation in its records.
Effect of Employer Closures and Furloughs
Employer closures or furloughs, whether occurring before or after the April 1, 2020 effective date of FFCRA, make the affected employees ineligible for leave under FFCRA. These employees may be eligible for unemployment benefits instead.
Small Business Exemption
The guidance also set forth criteria for a small business (including non-profits) exemption, applicable to employers with fewer than 50 employees. Notably, the exemption will only apply to leave taken for child care purposes (whether it falls under the emergency paid sick leave provision or the FMLA expansion). Employers are advised to document why their businesses meet the criteria for exemption. To claim the exemption, an authorized officer of the business (not defined) must determine 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.
Health Care Provider Exemption
Employers may exempt “health care providers” from paid sick leave or expanded FMLA by their employer under the FFCRA. The DOL provides an expansive definition of “health care provider,” although the DOL encourages employers to be “judicious” in their application of the exemption:
A health care provider 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.
Emergency Responder Exemption
Again, encouraging “judicious” application of the exemption, the DOL set forth a broad definition of “emergency responder”:
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. 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.
As more guidance becomes available, we will keep you informed. Please contact us if you have any questions about employer obligations under the Families First Coronavirus Response Act or other labor and employment laws.