Department of Labor Answers Important FFCRA Questions: Part Two

By John S. Gannon - Skoler, Abbott & Presser, P.C.

March 30, 2020

I hope you were able to get some sort of mental break from all things coronavirus this weekend.  One group that did not take a break was the U.S. Department of Labor (“DOL”).  DOL continued to update the Families First Coronavirus Response Act: Questions and Answers page to provide useful guidance and information to employers about Emergency Paid Sick Leave (“EPSL”) and Expanded Family and Medical Leave (“EFML”).  As many of you are aware, EPSL and EFML will be available to eligible employees on April 1, 2020.  We are hosting a complimentary webinar on Wednesday, April 1, 2020, from noon to 1 pm ET, to discuss the new FFCRA guidance from DOL.  We also published a blog last week addressing many of the important issues in the guidance, including whether employees can take EPSL or EFML if the business is closed or employees are furloughed, important documentation issues, and how the FFCRA interacts with employer-provided paid time off.  

Now on to Part Two of our commentary on the new guidance…

Can employees use EPSL and EFML in partial day increments?

The easiest way to answer this is that the general rule is no, partial day use of EPSL and EFML is not allowed.  This means employees must use EPSL and EFML in full-day increments.  There is a small exception for teleworkers if both the employer and the employee agree on the schedule.  DOL provides the following example: “if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.”  Again, the employer would have to agree to this schedule, and the rule does not apply if the employee is working onsite.

Can employees use EPSL and EFML intermittently?

DOL tells us, in lawyerly fashion: “It depends.”  The guidance is a little tricky here, but similar to use in partial day increments, the general rule is no.  There are two exceptions.  First, if the employee is teleworking, intermittent use of EPSL and EFML is allowed “if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the [FFCRA] qualifying reasons.”  The second exception applies to employees who are working onsite.  These employees are only allowed to take EPSL and EFML intermittently if they are taking the leave to care for a son or daughter whose school or place of care is closed, or child care provider is unavailable (what many are referring to as “reason number 5” – see Qualifying Reasons for Leave here).  Again, the employer and employee would have to agree on the intermittent use/schedule.  Importantly, if the need for EPSL and EFML is for one of the other qualifying reasons, intermittent use is not allowed.  This makes sense, because the other five reasons are related to COVID-19 exposure.  Do we really want these people coming in and out of work intermittently?  I don’t think so.  DOL explains: “This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.”

For those thinking they can simply not agree to any intermittent use, that’s arguably ok.  But DOL comments as follows: “The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.”  I too encourage you to remain flexible and open-minded when intermittent leave is requested.

What if my teleworking employee cannot work?

Teleworking is the new in thing, and will be for the foreseeable future.  But what if a teleworker becomes unable to work, perhaps because child care and work are unmanageable during daytime hours?  If the reason an employee cannot work – even telework – is related to a COVID-19 qualifying reason, including caring for a child, that employee is entitled to take EPSL and EFML.  DOL explains: “If your employer permits teleworking—for example, allows you to perform certain tasks or work a certain number of hours from home or at a location other than your normal workplace—and you are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave.”  Same goes for EFML.  All the more reason to try and be flexible with teleworking arrangements, perhaps by allowing telework during non-traditional working hours or agreeing to partial-day EPSL or EFML use.

We are a small business (less than 50 employees).  Do we have to provide EPSL or EFML?

Yes, but as we explained last week, there is an exception for businesses with fewer than 50 employees if the leave requirements would “jeopardize the viability of the business as a going concern.”  But what does this mean?   DOL provided some guidance over the weekend.  A small business (fewer than 50 employees) may claim this exemption if an authorized officer of the business has determined that one of the following applies:

1. 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;  
2. 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
3. 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.

Notably, DOL also stated that this exemption is only available if the leave request is due to closure of the employee’s child’s school or place of care (“reason number 5”).  DOL also commented as follows: “The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.”

What is a “health care provider” and an “emergency responder”?

As you may know, especially if you work in one of these fields, employers of “health care providers” and “emergency responders” may exclude these employees from both the EPSL and EFML leave provisions.  But what do these terms mean?  DOL explains:  “For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, 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 also 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,” and “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.”  That’s a lot to digest.  Some of you will clearly fall into one of these optional exclusion categories, others might be a close call.  If you read this and think your employees might fall within one of these categories, I encourage you to discuss this with your labor and employment counsel as soon as you can.    

As for an “emergency responder,” this 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.”  Again, a lot to process.  Discuss this with labor and employment counsel if your exclusion status is unclear.

What if the employee requesting leave has already taken FMLA this year for a traditional reason, such as caring for a new child or in connection with a serious health condition?  Do they get an extra 12 weeks of EFML?

DOL confirms the answer is no.  Employee eligibility for EFML depends on how much leave the employee has already taken during the 12-month FMLA period.  DOL provides the following example: “Assume you are eligible for preexisting FMLA leave and took two weeks of such leave in January 2020 to undergo and recover from a surgical procedure. You therefore have 10 weeks of FMLA leave remaining.  Because expanded family and medical leave is a type of FMLA leave, you would be entitled to take up to 10 weeks of expanded family and medical leave, rather than 12 weeks. And any expanded family and medical leave you take would count against your entitlement to preexisting FMLA leave.”  Keep in mind that this same rule would not apply for EPSL. DOL puts it this way: “Paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month period cap. But please note that if you take paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, then those two weeks do count towards the 12 workweeks in the 12-month period.

Can an employer that is part of a multiemployer collective bargaining agreement satisfy its obligations under the EPSL and/or EFML through contributions to a multiemployer fund, plan, or program?

DOL says that such an employer “may satisfy” its obligations under EPSL and EFML “by making contributions to a multiemployer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the amount of paid leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.”

Keep in mind this is a summary of what we considered the most important new information.  As of this morning, the guidance addresses almost 60 different issues that may or may not be important to your business.  We encourage everyone to review the guidance here, and check regularly for updates.  If you have questions or would like to discuss any FFCRA issues with us, please feel free to reach out.