As part of our continuing effort to keep our clients up to date on labor and employment developments related to COVID-19 and the Families First Coronavirus Response Act, we published a bulletin yesterday linking clients to further updated guidance issued by the Department of Labor on Saturday, March 28. We encourage clients to review those updated Q and A’s, but we also want to make some observations regarding some of their more significant aspects, especially as they may answer earlier questions or ambiguities about the new law and COVID-19. We will keep you apprised of anything further which the DOL may promulgate to help address those unanswered questions. If you have any questions about how the government’s response to COVID-19 impacts your business, please contact The Kullman Firm attorney with whom you regularly work.
An Employee’s Right to Return to Work Following Paid Sick Leave
or Paid Expanded FMLA Depends Upon the Employer’s Business Conditions
The most recently updated Q&A’s from the Department of Labor provide, that as a general rule, an employee is entitled to be restored to his or her same or an equivalent position upon returning from paid sick leave or expanded FMLA leave. This is true because employers are not permitted to fire, discipline, or discriminate against employees for taking protected leave under the FFCRA. There is one very prominent exception to this general rule, however: the Q&A‘s inform an employee that “you are not protected from employment actions, such as layoffs, that would have affected you regardless of whether you took leave. This means your employer can lay you off for legitimate reasons, such as the closure of your worksite. Your employer must be able to demonstrate that you would have been laid off even if you had not taken leave.” Certain other limited exceptions to the right to reinstatement are also provided in the case of “key employees” under the FMLA (as has always been true under the existing FMLA), or in some cases for employers with fewer than 25 employees.
Interplay of FFCRA Paid Sick Leave and Extended FMLA for
Employees Who Previously used FMLA and for Employees Who
may Seek FMLA after using Extended FMLA
At the outset, FFCRA paid sick leave is available to eligible employees regardless of any prior usage of FMLA by an employee for any reason other than the childcare provision of extended FMLA, such as the employee’s own serious health condition. For employers covered by FMLA before April 1, 2020, an employee’s eligibility for extended FMLA is dependent on how much FMLA leave an employee has taken during the 12-month period that the employer uses for calculating the amount of leave available to an employee. According to the DOL, an employee may take a total of 12 workweeks for FMLA or expanded FMLA during a 12-month period. For employees who have taken some, but not all, of the 12 workweeks of leave under FMLA during the current 12-month period used by an employer, an employee may take the remaining portion of leave available. If an employee has already exhausted 12 workweeks of FMLA leave during the 12-month period, the employee may not take additional FMLA.
Furthermore, any expanded FMLA an employee takes would count against his or her entitlement to FMLA leave for other reasons, such as an employee’s own serious health condition. An employee may take a total of 12 workweeks of leave during a 12-month period under the FMLA, including the Emergency Family and Medical Leave Expansion Act. If an employee takes some, but not all 12 workweeks of expanded FMLA by December 31, 2020, the employee may take the remaining portion of FMLA leave for a serious medical condition, as long as the total time taken does not exceed 12 workweeks in the 12-month period. Of note, expanded FMLA is available only until December 31, 2020.
The Interplay of Paid Sick Leave under the FFCRA and Other Types of
Paid Sick Leave under Federal, State or Local Law, or an Employer Policy
(including any Collective Bargaining Agreement)
According to the DOL, paid sick leave under the FFCRA’s paid sick leave provisions is in addition to other leave provided under Federal, State, or local law. It is also in addition to any paid sick leave under an employer’s existing company policy or an applicable collective bargaining agreement.
DOL Guidance Regarding Who Qualifies as a Health Care Provider
for Purposes of Quarantine Orders, and to which Health Care Providers
Employers Are Not Required to Provide EFMLEA and/or EPSLA Leave
On March 28, 2020, the DOL issued additional guidance addressing the term “health care provider,” in the context of quarantine orders. The guidance clarifies that the term “health care provider” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
In addition, as noted in previous bulletins, the EPLSA and the EFMLEA also allow employers to exclude from the paid leave benefits those deemed to be “health care providers.” For the purposes of this exclusion, the DOL guidance states that the term “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.”
Additionally, the DOL indicates that “health care provider” also includes individuals who are employed by an entity that contracts with any of the above institutions, employers, or entities 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. Further, it 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.
Although “health care provider” is defined broadly in this context, the DOL states that to minimize the spread of the virus associated with COVID-19, the DOL “encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.”
Employers Are Not Required to Provide EFMLEA and/or EPSLA
Leave to Emergency Responders
Even employers subject to the EFMLEA and EPSLA may exclude certain categories of employees from the mandatory leave provisions of those acts. These include emergency responders, which the new guidance defines as follows: “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.”
Small Businesses May Claim An Exemption From Certain Leave Requirements
Under the FFCRA If An Authorized Officer Determines that the Viability
of the Business May be Jeopardized
As previously noted by The Kullman Firm, small businesses of fewer than 50 employees may be exempt from certain provisions of the FFCRA. Specifically, such a business is exempt from providing EPSLA and EFMLEA leave when (1) the leave is requested due to school or place of care closures or child care provider unavailability for COVID-19 related reasons, and (2) when providing such leave would jeopardize the viability of the business. Notably, even where the viability of the business may be jeopardized, it appears that small businesses will not be exempt from providing EPSLA leave for any of the other qualifying reasons.
The DOL’s most recent updates offers guidance on how small businesses can qualify for this exemption. Specifically, the latest Q&As state that a small business may claim the exemption if an authorized officer of the business determines any of the following:
- 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.
Since legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.