On March 28, 2020, the U.S. Department of Labor (“DOL”) offered further clarification of certain provisions of the Families First Coronavirus Response Act. The complete list can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions Some of the significant clarifications for small to mid-sized businesses are as follows:

Small Business Exceptions

The DOL has clarified that small employers with fewer than 50 employees, including religious or nonprofit organizations, may claim an exemption from providing Emergency FMLA or Emergency Paid Sick Leave if their authorized officer determines one of the following applies:

  • Providing the benefit would cause the business to incur expenses and financial obligations to exceed its revenues and cause the business to cease operating at a minimal capacity;
  • The employee’s absence would entail a substantial risk to the business’s financial health or operational capabilities because of specialized skills, knowledge of the business, or responsibilities the employee possesses; or
  • There are insufficient workers who are able, willing, and qualified to perform the labor or services provided by the employee requesting childcare leave, and these labor or services are needed for the business to operate at a minimal capacity.

The DOL indicates, however, that the school closures/childcare reasons for leave are the only reasons for which this exemption is available, and only if one of the above criteria is met.

Business Size Requires Day-Of Calculation:

The FMLA emergency leave provisions apply to private employers with 499 or fewer employees, but the law does not say what time period employers must use to make this calculation. The DOL clarified that employers should use the number of employees on the day the subject employee’s leave would start.

Limits of FMLA Leave 

The DOL clarified that the Emergency FMLA provisions do not change the overall amount of FMLA leave employees can take during an applicable FMLA 12-month period. For example, if during an applicable FMLA 12-month period an employee takes 12 weeks of FMLA leave, Emergency FMLA leave is unavailable because the employee has exhausted 12 weeks of FMLA leave.

 Full Time vs. Part Time Employees

The amount employees receive for emergency paid sick leave depends on whether they are “full” or “part” time. The DOL clarified that “full-time” employees for emergency paid sick leave purposes are those who normally are scheduled 40 or more hours per week. An employee who is not “full” time is “part” time, and that employee receives a number of emergency paid sick leave hours equivalent to the number of hours the employee works on average over a two-week period (using a six month average).

Job Restoration After FMLA Leave

The DOL clarified that employers can deny reinstatement to the same or equivalent position to an individual who qualifies as an FMLA “key” employee (salaried employee who is among the highest-paid 10% of all the employer’s employees within 75 miles of the employee’s worksite), or who works for an employer with 24 or fewer employees and takes school closure/childcare leave, and all four of the following hardship conditions exist:

  1. The position no longer exists due to economic or operating conditions that affect employment and are due to COVID-19-related reasons during the leave period;
  2. Employer made reasonable efforts to restore the employee to the same or an equivalent position;
  3. Employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
  4. Employer continues to make reasonable efforts to contact the employee for one year, beginning on the date COVID-19 leave ends or the date 12 weeks after leave began (whichever is earlier).

Emergency Leave Counts Toward Health Coverage Eligibility

The DOL clarified that, for employees completing an eligibility period before they can receive employer-provided group health coverage, the time they take Emergency FMLA leave instead of actively working counts towards satisfying the eligibility period requirements.

Definition of Health Care Provider & Emergency Responder for Employee Exception

Employers of health care providers and emergency responders can elect to exclude the following employees, among others, 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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions, and any individual employed by an entity that contracts with any of the above institutions, employers, or entities. 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.

If you have questions or would like to discuss COVID-19 concerns, please contact Attorney Michael P. Doherty, Attorney Andrew M. Kepple, Attorney Gabriel W. Bell, or one of our other employment attorneys at 508-541-3000.

This blog is for informational purposes only.  It should not be considered legal advice.  All those who read this blog should seek the advice of a professional before taking action based upon any information provided herein.

© 2020 Doherty, Dugan, Cannon, Raymond & Weil, P.C.

Article by Attorney Gabriel W. Bell

Partner, Attorney

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