DOL Explains Small Business, Healthcare Provider and Emergency Responder Exemptions to Families First Coronavirus Response Act, and Many Other Things

By Fiona W. Ong - Shawe Rosenthal LLP

March 29, 2020

The U.S. Department of Labor updated its Families First Coronavirus Response Act: Questions and Answers on Saturday, March 28, 2020 to provide guidance on a number of key issues, including the exemptions to the paid leave mandates under the FFCRA for small businesses, healthcare providers, and emergency responders.

As we previously explained, the law requires private employers with fewer than 500 employees, along with certain public employers, to provide ten days of paid sick leave for specific COVID-19-related reasons, and expanded the Family and Medical Leave Act, with additional paid leave, to cover the need to care for a child whose school or child care is closed because of COVID-19. The FFCRA, however, contains an exemption for small businesses with fewer than 50 employees if these leave requirements “would jeopardize the viability of the business as a going concern.” It also exempts healthcare providers and emergency responders from these leave mandates. The DOL has now explained how each of these exemptions work. It has also provided additional guidance on a variety of other issues.

Small Business Exemption. As stated above, the FFCRA provides an exemption from the paid sick leave and expanded FMLA leave requirements if these leave requirements “would jeopardize the viability of the business as a going concern.” The DOL explains that a small business may claim this exemption if an authorized officer of the business has determined that:

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.

Emergency Responder Exemption. The FFCRA exempts certain “emergency responders” from the paid sick leave and expanded FMLA leave mandates. The DOL has now defined “emergency responder” as 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.

The DOL states that, to minimize the spread of the virus associated with COVID-19, it encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

Healthcare Provider Exemption. The FFCRA exempts certain “healthcare providers” from the paid sick leave and expanded FMLA leave mandates. The DOL has now provided clarification as to who are such healthcare providers, and it is an extremely broad definition encompassing anyone who is involved in the healthcare industry, even including contractor support personnel for services like food service and maintenance, as well as suppliers and manufacturers of medical products.

Specifically, according to the DOL, 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.

The DOL further states that 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.

Despite this incredibly broad definition, the DOL reiterates the judicious use of this definition to exempt health care providers from the provisions of the FFCRA in order to minimize the spread of COVID-19.

“Healthcare Providers” Advising Employees to Self-Quarantine. One of the reasons for which an employee may take paid sick leave under the FFCRA is that a healthcare provider has advised the employee to self-quarantine. The DOL has defined such healthcare providers as a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

FFCRA Paid Sick Leave Is a New Bank of Leave. In case there is still any confusion, the DOL flatly states that this paid sick leave is in addition to other leave provided under Federal, State, or local law; an applicable collective bargaining agreement; or an employer’s existing company policy.

No Additional FMLA Leave. The DOL makes clear that the expanded FMLA leave right is not an additional 12 weeks of leave on top of the existing 12-week FMLA entitlement during a 12-month period. Rather, an employee may use their available FMLA leave for the new purpose – to care for their child due to the closure of the school or child care or the unavailability of a child care provider because of COVID-19.

Thus, if the employee is eligible for regular FMLA leave and has already used part of the 12-week entitlement for other FMLA reasons, they can use the remaining leave for this new reason. If the employee has already exhausted all 12 weeks of FMLA leave, they will not have any FMLA leave available for the new reason. Conversely, if the employee uses part of their 12-week FMLA leave for this reason, they may use the remaining amount for other FMLA reasons. And if the employee uses all 12 weeks for this new reason, they will not have any FMLA leave for any other reason for the rest of the 12-month period.

Note that the FFCRA extends the expanded FMLA right for school/child care closures to employees not eligible for regular FMLA – those who have worked for an employer for 30 days (and would not meet the normal FMLA eligibility requirements of 12 months of employment and 1250 hours of service during the prior 12 months) and employees of employers with fewer than 50 employees (who are not covered by regular FMLA). These employees receive a full 12 weeks of FMLA leave to use to care for a child due to the closure of the school or child care. This right expires on December 31, 2020.

Definition of Son or Daughter Under the FFCRA. The DOL makes clear that the definition of “son” or “daughter” under the law is the same as that under the Family and Medical Leave Act, i.e. the employee’s own child, including their biological, adopted, or foster child, stepchild, legal ward, or a child for whom they are standing in loco parentis (meaning someone with day-to-day responsibilities to care for or financially support a child). The definition of “son or daughter” is limited to children under the age of 18, or 18 years of age or older and incapable of self-care because of a mental or physical disability.

If Leave Is Improperly Denied. If an employee believes that they are entitled to but have been improperly denied paid sick leave or expanded FMLA leave under the FFCRA, the DOL “encourages” them to raise their concerns with their employer. The DOL also informs employees that they can contact the DOL’s Wage and Hour Division for assistance or to file a claim. The DOL notes that employees can also file a lawsuit against their employer for such violations (although in the case of an FMLA violation, only if the employer has 50 or more employees).

Job Reinstatement. Employees are generally entitled to be restored to the same or an equivalent position upon returning from either paid sick leave or expanded FMLA leave, as employers are prohibited from disciplining or discriminating against employees for exercising their rights under the FFCRA.

Just as under regular FMLA, however, there are certain circumstances under which reinstatement is not required. Thus, employees are not protected from employment actions that would have been taken regardless of whether they took leave (for example, employees may be laid off for legitimate business reasons, such as the closure of a worksite). In addition, certain highly-compensated “key” employees, as defined under the FMLA, need not be reinstated.

Also, the FFCRA provides that if the employee takes expanded FMLA leave to care for a child due to the closure of the school or child care, the employer need not reinstate the employee if all four of the following hardship conditions exist:

- The employee’s position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of the leave;
- The employer made reasonable efforts to restore the employee to the same or an equivalent position;
- The employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
- The employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the leave began, whichever is earlier.

Stay tuned for further updates. The DOL is releasing guidance on an almost daily basis. We will continue to inform you of these new developments.