A new compliance assistance guidance from the DOL (“Guidance”) has been posted concerning the paid leave provisions under the Families First Coronavirus Response Act (“FFCRA”), which includes Emergency Family and Medical Leave Expansion leave (“Expanded FMLA”) and Emergency Paid Sick Leave (“EPSL”) provisions, all of which become effective April 1, 2020.
As before, the new Guidance is in the form of “FAQ” statements — 59 of them, to be exact. Much of the new Guidance simply reiterates information from the previous statements issued in the last two weeks. However, some of the information is new or clarifies existing DOL positions. The most important points are detailed below.
- Pursuant to FAQ #43, small employers (under 25 employees) may opt out of the “employee restoration” requirement of the Expanded FMLA provision (pertaining to school and daycare closures). Specifically, these employers can deny an employee’s return to the job following Expanded FMLA leave if all four of the following hardship conditions exist:
- the position no longer exists due to economic or operating conditions caused by coronavirus-related reasons during the period of Expanded FMLA leave; and
- the employer can show it made reasonable efforts to restore the employee to the same or an equivalent position; and
- the employer makes reasonable efforts to contact this same 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 FMLA+ leave began, whichever is earlier.
- Pursuant to FAQ #44, employees are still limited to 12 weeks per year of FMLA leave, whether it takes the form of traditional FMLA or Expanded FMLA. For example, if an employee has already taken two weeks of traditional FMLA leave during the course of the year before the coronavirus outbreak, an employee now eligible for Expanded FMLA would exhaust their leave related to school closings after only 10 weeks.
- Pursuant to FAQ #56-57, “health care providers” and “emergency responders” (and companies that work with them) are excluded from the requirements of the EPSL and Expanded FMLA. Specifically, the DOL Guidance provides that employers can elect to exclude from coverage “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 … includ[ing] any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.” In addition, this exclusion applies to others supporting the health care provider and emergency responder industries, such as:
- any individual employed by an entity that contracts with any of the above entities to provide services or to maintain operations; and
- anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of coronavirus-related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
- Pursuant to FAQ #58-59, the DOL has clarified that small employers (those with fewer than 50 employees) may claim an exemption from providing paid leave under the Expanded FMLA (i.e., to care for kids whose schools are closed, which is Reason #5 on the DOL poster). This exemption applies if the employer determines that one of the following applies to its business:
- Providing leave due to school closures would cause the business’ expenses and financial obligations to exceed its revenues and cause the business to cease operating at a minimal capacity;
- A particular employee’s absence would create a substantial risk to the business’ financial health or operational capabilities because of that employee’s specialized skills, knowledge, or responsibilities; or
- There are insufficient workers who are able, willing, and qualified to perform the labor or services provided by the employee(s) requesting this kind of leave, and these labor or services are needed for the business to operate at a minimal capacity.
So if the demand for paid leave due to this “school-related reason” (but not any of the other DOL-approved reasons or paid leave) gets overwhelming, small employers will have the option to avoid paid leave.
- Pursuant to FAQ #15-16, the DOL retracted some of its previous guidance regarding types of documentation needed to support a leave request under EPSL and Expanded FMLA. The DOL Guidance suggests that employers look to “applicable forms, instructions, and information” available from the IRS — but to date, the IRS has not actually published such information for employers yet. For EPSL and Expanded FMLA absences related to school closures, the Guidance informs employees that they should expect to provide “notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider.” For all other EPSL reasons, employers may still request appropriate supporting medical documentation.
The Labor and Employment lawyers at Coolidge Wall will post additional analysis about employer responsibilities under the Families First Coronavirus Response Act, as well as information updates on other federal and state developments related to the coronavirus outbreak. Should you have specific questions, please contact us.
Marc L. Fleischauer
David P. Pierce
Benjamin A. Mazer
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