It seems the DOL has stopped sleeping these days, but that means more guidance for employers. In itsQs&As 38-59interpreting the Families First Coronavirus Relief Act (FFCRA), the DOL shed light on the small business exemption, employees who can be exempted for the FFCRA leave provisions, and the interplay of the FFCRA and the Family and Medical Leave Act (FMLA). The FFCRA takes effect on April 1, 2020, so this guidance is, in a word, timely. Here are some highlights. (Dykema summarizedQs&As 1-14 on March 26, 2020, andQs&As 15-37 on March 27, 2020.)

Employers With Less Than 50 Employees May Be Exempt From Providing Paid Sick Leave and Expanded Family and Medical Leave

With a few days to spare the DOL provided guidance as to the small business exemption. Employers with less than 50 employees are exempt from providing paid sick leave and expanded family and medical leave if an authorized officer of the company has determined that (1) paying the leave obligations would result in the business’s expenses and financial obligations exceeding business revenues and cause the business to cease operating at a minimal capacity; (2) the employee(s) requesting leave has specialized skills, knowledge of the business, or responsibilities and their absence would entail a substantial risk to the financial health or operation capabilities of the business; OR (3) there are not sufficient workers who are able, willing, qualified, and available to replace the employee(s) requesting leave and the labor or services of the requesting employee(s) are necessary for the business to operate at a minimal capacity.

Essentially, if the employer can provide leave and operate minimally, the employer is obligated to do so. Further, the DOL still does not want employers to send it any materials regarding this exemption, but employers should be sure to document their rationale for claiming the small business exemption.

Employers of “Heath Care Providers” or “Emergency Responders” May Not Have to Provide FFCRA Leaves

Employers who employ “health care providers” or “emergency responders” are not required to pay those employees FFCRA paid sick leave or expanded family and medical leave on a case-by-case basis.

“Health care providers” include 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, lab or medical testing facility, and pharmacy. Further, anyone employed by any entity that produces medical products or is involved in making COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments is included.

“Emergency responders” include employees who are 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.

Employers who believe their employees may fall into either of these categories should contact a Dykema Labor and Employment attorney for advice.

Employees Who Have Already Taken FMLA Leave Can Still Take FFCRA Leave

An employee is entitled to two weeks of FFCRA paid sick leave no matter how much FMLA leave the employee may already have taken during the applicable 12-month period. However, an employee is only entitled to a total of 12 weeks of expanded family and medical leave and regular FMLA leave, so if an employee has already taken FMLA leave, that will impact the amount of expanded family and medical leave the employee is entitled to receive for childcare purposes.

For example, if an employee has already taken two weeks of FMLA leave during this 12-month period, the employee is entitled to 10 weeks of expanded family and medical leave.

This also works the other way. If an employee takes four weeks of expanded family and medical leave in April to care for the employee’s child whose school is closed due to COVID-19 (and the employee is unable to telework), that employee still has eight weeks of FMLA leave that the employee could take in August if the employee needs it at that time for a regular FMLA covered serious health condition.

If however, an employee already has taken 12 weeks of FMLA leave in this 12-month period, the employee is not entitled to any expanded family and medical leave, but is entitled to two weeks of paid sick leave.

Keep in mind that employees are entitled to two weeks of paid sick leave regardless of how much FMLA leave they have taken. Since the up to 80 hours of paid sick leave under the FFCRA is not FMLA leave, that paid sick leave does not count towards an employee’s 12 weeks of FMLA and EFMLEA leave, unless it is taken concurrently with the first two weeks of expanded family and medical leave.

Employers Must Return Employees on Leave to the Same or an Equivalent Position After Leave

The DOL explained that the FFCRA is to be interpreted consistent with the Family Medical Leave Act and therefore the FFCRA obligates employers to provide the same, or nearly equivalent, job to employees who are returning to work from FFCRA leave. There are narrow exceptions to this obligation for “key” employees on leave for employers with fewer than 25 employees. Employers with questions about these exceptions should contact a Dykema Labor and Employment attorney.

Paid Sick Leave Does Not Double Count

FFCRA paid sick leave cannot be used to satisfy an employer’s obligation under any state or local law or ordinance. Nor can an employer use its existing PTO policy to meet these obligations. Paid sick leave is in addition to all of these obligations.

Employees May Take Leave to Care for Adult Children With Disabilities

If an employee is taking paid sick leave or expanded family and medical leave to care for a child, that child must be the employee’s biological, adopted, foster child, stepchild, legal child, or child for whom the employee standsin loco parentis. Further, this leave may also be taken by an employee to care for an adult son or daughter who has a mental or physical disability and is incapable of self-care because of that disability.

The DOL is chipping away at the many questions employers have regarding the FFCRA, but with only a few days until its April 1 effective date, it is likely that more guidance will soon be issued. Employers should be on alert for more guidance as it is issued, and Dykema will continue to provide alerts as more guidance rolls-out. Meanwhile, contact any attorney in Dykema’s Labor & Employment Law Practice Group for further counsel as to how to comply with this new law or otherwise navigate through the challenges being confronted due to the COVID-19 virus.

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