Round 3 – DOL Issues Additional Guidance on COVID-19-Related Leave

Garrett Wozniak
Garrett Wozniak
03/30/2020

The Department of Labor has answered additional questions regarding the expanded family and medical leave (EFMLA) and emergency paid sick leave (EPSL) mandated by the Families First Coronavirus Response Act.  Here are the highlights:

What documentation is required?  (FAQ 15-16)

We previously explained that the DOL in its second Q&A update set forth the types of information and documentation employers must require and employees must provide.  The DOL  has revised its answers to those questions.  The DOL recognizes that employers may (are likely to) seek tax credits for EPSL and EFMLA.  Employers who will seek a tax credit for EPSL and/or EFMLA should retain appropriate records and consult IRS “forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.”

Employers may deny leave “if materials sufficient to support the applicable tax credit have not been provided.”

Regarding EFMLA leave employers may require employees to provide supporting documentation to the extent permitted for traditional FMLA.  The DOL has also iterated, to the extent it was not already apparent, that employees taking traditional FMLA, such as a serious health condition, must provide medical certifications as required by the employer under the FMLA.

What is a health care provider for purposes of exceptions to coverage and for recommending self-quarantine?  (FAQ 55-56, 58)

A “health care provider” who may determine that an individual should self-quarantine due to concerns related to COVID-19 means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

Covered employers who employ health care providers or emergency responders are not required to pay those employees EPSL or EFMLA, as determined on a case-by-case basis.

A “health care provider” whom an employer may exclude from EPSL and EFMLA 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 of “health care provider” also includes those who work for contractors of the above-referenced entities, 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.”

“Health care provider” for this purpose also includes an individual the highest official of a state or territory, or D.C. determines is a health care provider necessary for that state’s or territory’s or D.C.’s response to COVID-19.”

Who is a son or daughter?  (FAQ 40)

A “son or daughter” is an employee’s own child, including biological, adopted, or foster child, stepchild, a legal ward, or a child for whom the employee is standing in loco parentis (someone with day-to-day responsibilities to care for or financially support a child).

“Son or daughter” also includes an adult son or daughter who has a mental or physical disability, and is incapable of self-care because of that disability.

What are FFCRA’s Job Restoration and Reemployment Requirements?  (FAQ 43)

Both the EPSL and EFMLA provisions require employers to return employees using EPSL and/or EFMLA to the same (or a nearly equivalent) job upon return from leave.

This means that employers must return employees to the same or an equivalent position upon return from EPSL and/or EFMLA.

How do layoffs, furloughs, and other employment actions impact the restoration and reemployment rights under FFCRA?  (FAQ 43)

Employees “are not protected from employment actions, such as layoffs, that would have affected [the employee] regardless of whether [he] took leave.

Employers may make employment decisions based on legitimate business reasons.  For example, employers may layoff employees because of a business closure.  Employers must show that the layoff would have occurred even if the employee had not taken leave.

What must employers with fewer than 25 employees do if they deny job restoration to employees?  (FAQ 43)

An employer with fewer than 25 employees may deny job restoration to employees who take leave to care for the employee’s own son or daughter whose school or place of care was closed, or whose child care provider was unavailable (the only EFMLA reason under FFCRA), only if the following criteria exist:

  1. 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 employee’s leave;
  2. The employer made reasonable efforts to restore the employee to the same or an equivalent position;
  3. The employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
  4. 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 employee’s leave began, whichever is earlier.

Does the 12 week FMLA cap apply to EFMLA?  (FAQ 44-45)

For employers who are covered by the traditional FMLA (meaning, those covered by the FMLA before April 1, 2020), employees are entitled only to a total of 12 weeks of FMLA leave in the 12-month period the employer uses for FMLA leave.

An employee may take a total of 12 workweeks for FMLA or EFMLA reasons.  There is no separate 12 week allotment for employees of employers covered by the FMLA prior to April 1, 2020.  So, if an employee has already taken six weeks of FMLA in the applicable 12-month period, he may only take six weeks of EFMLA.

For employers who are not otherwise covered by the FMLA, the 12 weeks of EFMLA eligibility applies and would not be impacted by FMLA used prior to April 1, 2020.

Likewise, if an employee of an employer covered by the FMLA regardless of the EFMLA provisions uses six weeks of EFMLA, she would have six weeks of traditional FMLA remaining for the FMLA-qualifying reasons in the applicable 12 month period.

EPSL is not EFMLA — meaning, an employee may take 12 weeks of EFMLA and their full allotment of EPSL, assuming the employee is eligible for the leave.

What are full-time and part-time employees under the Emergency Paid Sick Leave Act?  (FAQ 48-49)

Under the EPSL provisions, a full-time employee is an employee who is normally scheduled to work 40 or more hours per week.  A part-time employee is an employee who is normally scheduled to work fewer than 40 hours per week.

Does the traditional FMLA apply for purposes of counting employees under the EFMLA?  (FAQ 50)

No.  Under the EFMLA provisions, the number of employees is based on the number of employees employed on the day the employee’s leave would start.

Who is an emergency responder?  (FAQ 57)

An emergency responder who may be excluded from EPSL or EFMLA 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,” including, but 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.

Emergency responder 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.

When does the small business exemption (employers with fewer than 50 employees) apply?  (FAQ 58-59)

Employers — including religious or nonprofit organizations — with fewer than 50 employees are exempt from providing EPSL and EFMLA due to school or place of care closures or child care provider unavailability for COVID-19 related reasons (the only reason for which EFMLA is available).  This exemption applies only when providing the leave would jeopardize the viability of the employer as a going concern.

To claim the exemption, an authorized officer of the business must conclude that:

  • The provision of EPSL or EFMLA 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 EPSL or EFMLA 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 EPSL or EFMLA, and these labor or services are needed for the employer to operate at a minimal capacity.

The small business exemption is available only for leave requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

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