Additional Guidance from DOL on FFCRA – including rules for small employer exemption and definitions of “health care provider” and “emergency responder”

Over the weekend, the Department of Labor (DOL) issued its latest round of guidance on the FFCRA’s Emergency Paid Sick Leave (EPSL) and Expanded FMLA (E-FMLA) requirements. The additional guidance is found in Questions #38-59 of DOL’s running Q&A document. Below are the highlights. You can find our initial write-up of the FFCRA, and our summaries of the DOL’s first and second guidances, here.

The FFCRA referred to a small business exemption for employers with fewer than 50 employees. Do we have any more information?

Finally we do! The DOL has confirmed that employers with fewer than 50 employees may be exempt from having to provide E-FMLA and EPSL Category #5 (leave to care for a child due to the school or childcare provider being closed/unavailable due to COVID-19). Note that this exemption only applies to E-FMLA and EPSL due to school/childcare closure – not to other types of EPSL.

In order to claim exemption from providing E-FMLA or EPSL Category #5, an authorized officer of a business with fewer than 50 employees must have determined that one of the following is true:

    1. Providing EPSL or E-FMLA would result in expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
    2. The absence of the employee(s) requesting EPSL or E-FMLA would entail a substantial risk to the financial health or operational capabilities of the 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(s) requesting EPSL or E-FMLA, and these labor or services are needed for the small business to operate at a minimal capacity.

We strongly recommend that the company maintain both the records and information on which the officer’s determination is based and a written record of the officer’s determination.

 

Can an employee take EPSL or E-FMLA to care for any child whose school or childcare is closed?

The FFCRA only provides leave to care for a “son or daughter” whose school or child care is closed or unavailable – not any child. The DOL has now clarified that “son or daughter” includes any “biological, adopted, or foster child, your stepchild, a legal ward, or a child for whom you are standing in loco parentis—someone with day-to-day responsibilities to care for or financially support a child.” So the key is that the child is that employee’s responsibility – EPSL is not available where the employee wants to care for someone else’s child.

 

If an employee used FMLA earlier in the year, does that impact EPSL and E-FMLA?

The DOL has clarified that E-FMLA counts toward the total 12 weeks contemplated under the FMLA. So, if an employee has taken FMLA within the last 12-months, their total regular FMLA and E-FMLA can’t exceed 12 weeks. Similarly, an employee who takes E-FMLA, will have that time counted against their annual FMLA entitlement.

 

What is a full-time employee for purposes of EPSL? What is a part-time employee?

For purposes of EPSL, a full-time employee is one who is normally scheduled to work 40 hours or more per week. A part-time employee is one normally scheduled to work fewer than 40 hours. This matters for EPSL, because it determines how many hours of EPSL the employee is eligible to receive.

 

Who is a “health care provider” for purposes of determining which employees can be denied EPSL/E-FMLA?

The FFCRA provides that employers can refuse EPSL and E-FMLA for “health care providers.” The DOL has now clarified that a health care provider is very broad. It includes 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.

“Health care provider” also includes anyone employed by an entity that contracts with any of these health care institutions to provide service or to maintain the operation of the facility. The DOL states that this includes anyone employed by an 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” and anyone that the highest official of a state or territory (generally, a governor) determines is a health care provider necessary for that state or territory’s response to COVID-19.

However, the DOL encourages employers to be judicious with their reliance on the “health care provider” exemption in order to minimize the spread of COVID-19.

 

Who is an “emergency responder” for purposes of determining which employees can be denied EPSL/E-FMLA?

The DOL has also defined “emergency responders” very broadly, stating that it is an employee who is necessary for the provision of transport, care, health care, comfort and nutrition, or whose services are otherwise needed to limit the spread of COVID-19. The DOL states that 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.” In addition, anyone that the highest official of a state or territory (generally, a governor) determines is an emergency responder necessary for that state or territory’s response to COVID-19 is deemed to be an emergency responder.

However, the DOL encourages employers to be judicious with their reliance on the “emergency responder” exemption in order to minimize the spread of COVID-19.

 

Is my company required to return an employee to the same position after his or her leave?

The DOL says yes – in most circumstances. Employers can’t take an adverse employment action (firing, disciplining, etc.) against an employee for taking EPSL or E-FMLA. However, employees aren’t protected from employment action that would have impacted them regardless of their being on leave – such as layoffs or furloughs.

Employers with fewer than 25 employees also have some specific provisions that apply to an employee returning from E-FMLA. If your company is in that position, refer to Question #43 in the Q&A or contact your employment lawyer to discuss.

DOL Provides Additional Guidance on Families First Leave Provisions, Including Treatment of Employees on Furlough and Handling of Intermittent Leave

More Guidance from DOL on Paid Sick Leave and Emergency FMLA

Late Thursday the Department of Labor (DOL) issued more guidance for employers on the Families First Coronavirus Relief Act (FFCRA) emergency paid sick leave (EPSL) and expanded Family and Medical Leave Act (E-FMLA) requirements. The additional guidance is in the form of 22 new Q&As (#15-37 in the Guidance, which you can find here).

The guidance finally answered several important questions that had left employers confused by their obligations, including how to handle furloughed employees and whether intermittent leave is available to care for a child who is home from school or childcare because of a COVID-19-related closure.

Here are the key questions and answers from this new guidance:

What are the records the employee must provide and the employer must keep?

To be eligible for the tax credit, employers must require, and employees must provide, appropriate documentation in support of the reason for the leave. The documentation should include the employee’s name, the qualifying reason for the leave, a statement that the employee is unable to work (or telework) for that reason, and the dates for which they require the leave. While it appears that the employee’s own declaration will satisfy part of the requirement, the employee must provide documentation supporting the reason for the leave. Examples of such documentation are a copy of the Federal, State, or local quarantine or isolation order related to COVID-19, written documentation by a health care provider advising self-quarantine, or the notice demonstrating the closure of a school or place of care.

The DOL Guidance makes clear that this documentation must be retained by the employer to support the tax credit.

May EPSL and E-FMLA be taken intermittently?

Employees who are working at their usual worksite may use EPSL and E-FMLA intermittently only if the reason they are taking the leave is to care for a child whose school or childcare is closed or unavailable (Category #5) and the employer agrees. The DOL encourages employers and employees to collaborate to achieve flexibility in this area.

Employees who are teleworking may take EPSL and E-FMLA intermittently with the employer’s agreement, in whatever increments the employee and employer agree to. The DOL encourages employers and employees to collaborate to find ways to allow for a combination of telework and intermittent leave.

What happens if I close a worksite? Are employees eligible for EPSL/E-FMLA?

In general, employees are not eligible for EPSL or E-FMLA during the period when a worksite is closed. This is true even if the worksite closes on or after April 1, 2020 and even if an employee already has begun EPSL or E-FMLA leave. In this situation, the employee would receive EPSL or E-FMLA only for the period from April 1 to the date of the closure.

Are furloughed employees eligible for EPSL/E-FMLA?

No. If the employer implements a furlough because it does not have enough work or business, then the impacted employees are not eligible for EPSL/E-FMLA. Note that this remains the case even if the employer indicates that they plan to reopen.

Employees who are furloughed should apply for unemployment benefits.

If an employer reduces an employee’s hours, can employees use EPSL or E-FMLA to make up the difference?

No.

May I require employees to use other available paid leave (vacation time, PTO, etc.) to supplement the EPSL/E-FMLA pay? May I allow them to?

Employers may not require employees to use paid leave to “top off” their EPSL/E-FMLA pay, but may allow it if the employee wishes to do so.

What if I want to pay an employee their full pay during EPSL or E-FMLA even though they only receive 2/3 pay under the FFCRA?

Employers can choose to pay more, but they will not receive a tax credit for the excess payments.

When is an employee able to telework for purposes of the FFCRA?

An employee is able to telework (and thus ineligible for EPSL and E-FMLA) if the employer permits or allows them to perform work at home or a location other than their regular workplace and pays them their normal wages for such work.

When is an employee unable to work or telework?

An employee is unable to work or telework, and thus potentially eligible for EPSL, if the employer has work for them and one of the EPSL qualifying reasons keeps them from being able to perform that work (either at their worksite or via telework).

Do state and local “stay at home” and “shelter in place” orders constitute “quarantine or isolation” orders so as to satisfy Category #1 for EPSL?

The guidance doesn’t specifically address whether the current broad government orders to “stay at home” or “shelter in place” constitute a “quarantine or isolation order” as is required to fall under Category #1 for purposes of EPSL. However, language in one of the questions regarding workplace closures further supports what we already thought – namely that these orders do not meet the requirements for Category #1.

 

 

DOL Releases COVID-19 Mandatory Notice to Employees: What Do I Need to Do?

Yesterday, the Department of Labor (DOL) released the poster that all employers with fewer than 500 employees are required to display in the workplace that outlines employee leave rights under the Families First Coronavirus Response Act (FFCRA). A link to the poster can be found here.

This poster is required to be posted in a conspicuous place on the premises where employees can see it. However, given that many workplaces are now remote, the DOL has indicated that employers may meet their notice requirement by emailing the notice to employees or posting it on an employee information internal or external website.

For more resources and LP’s response to COVID-19, visit this webpage.

DOL Issues New Proposed Minimum Salary Threshold

The Department of Labor has (finally) issued its new proposed overtime rule — which sets the minimum salary for an employee to be eligible for the white collar exemptions at $35,308.  You can read more about this development here.  This is significantly higher than the $23,660 that is currently in place but much lower than the $47,476 that the Obama administration tried to implement in 2016.

It’s important to remember that salary is only the first step in the analysis.  Even if an employee is paid a salary over the minimum, the employer still needs to establish that the employee satisfies the job duties requirements to be classified as exempt.

 

DOL Ditches Prior Intern Test in Favor of More Company-Friendly Test

600px-US-DeptOfLabor-Seal_svgLast week, the Department of Labor (DOL) issued a news release stating that going forward, it will use the seven-factor “primary beneficiary” test — set forth by the 2nd Circuit and applied by other Circuits — to determine whether interns working at for-profit employers are employees under the Fair Labor Standards Act (FLSA), expressly rejecting its previous test from 2010.

The “primary beneficiary” test that will now be applied by the DOL analyses the following seven, non-exhaustive factors:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The DOL noted that this new test will be applied in a “flexible” manner, and that whether an intern qualifies as an employee under the FLSA depends on the unique circumstances of each case.

It is widely agreed that the primary beneficiary test is easier for companies to satisfy than the DOL’s prior test, but it’s too early to tell how much of an impact this change will be. If you do have an internship program, it’s a great time to review intern classifications and make sure that they are being treated properly under employment laws.

 

 

Could the 2016 Overtime Regulations Come Back to Life?

600px-US-DeptOfLabor-Seal_svgIt seems like we spent the better part of 2016 getting ready to comply with the new overtime regulations that had been set to go into effect December 1, 2016 — until a federal judge in Texas issued a last-minute injunction.  The Texas court’s injunction meant that the new overtime standards — including a much higher minimum salary requirement — did not go into effect as planned, even though many employers had already made changes to comply with them. That injunction is currently being appealed before the 5th Circuit, but the new Department of Labor’s positioning in that appeal is raising the potential that the 2016 rules could come back to life — at least until a new, replacement rule can get through the rule making process.

The issue here is that while the new Secretary of Labor has taken steps toward revising the overtime regulations (with an eye toward making them more employer-friendly), the DOL has not asked the appellate court to uphold the injunction that was issued late last November.   This sets up a situation where the 5th Circuit could rule to dissolve the injunction — allowing the Obama administration’s rule to go into effect —  before the agency has a replacement rule ready via the regulatory process.

Were this to occur, it would create a very difficult situation for the DOL and employers alike. The current DOL would be charged with implementing a rule that it plans to do away with, and employers would have to figure out how to comply with a rule that will likely change in the near future.

We suggest that employers hold tight until more information is known. Given the last-minute nature of the injunction, many employers had already taken steps to comply with the new overtime rules before they were stayed, so if the injunction is dissolved, those employers should be able to pick the process back up where they left off.

It is not clear when the 5th Circuit will issue its decision on the fate of the regulations and injunction, but we will alert you when it does.

 

 

 

 

 

 

 

 

 

 

 

 

 

DOL Withdraws Joint Employer, Independent Contractor Guidance

600px-US-DeptOfLabor-Seal_svgEarlier today, U.S. Secretary of Labor Alexander Acosta announced the withdrawal of the U.S. Department of Labor’s informal guidance on joint employment and independent contractors issued during the Obama administration. The announcement states that the withdrawal does not “change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act” and that the DOL “will continue to fully and fairly enforce all laws within its jurisdiction.” We will keep you updated on any additional word from the DOL on these issues, but it appears that by withdrawing these guidelines, the new administration is taking a first step away from attempts of the Obama administration and the NLRB to expand concepts of joint employment.