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COVID-19 Emergency Paid Sick Leave and Family Medical Leave: Updated Department of Labor FAQs

March 30, 2020

The Department of Labor (the “DOL”) issued FAQs regarding the Families First Coronavirus Response Act (the “FFCRA”) and has updated its FAQs multiple times by adding questions to the same document.  The FAQs can be found here. The most recent update occurred on March 28, 2020 and addressed many of employers’ questions that were initially left unanswered in the FFCRA and the initial FAQs.

Below is a brief summary of some of the issues covered in the DOL’s new FAQs.

  • Full-Time Definition: For purposes of the paid sick leave provision of the FFCRA, a full-time employee is any employee that works 40 or more hours in a workweek. Any employee that works fewer than 40 hours is considered “part-time”.  Employers should use these definitions when evaluating the amount of Emergency Paid Sick Leave the employee should receive, even if the employer has different definitions of full-time and part-time when reviewing eligibility for other employee benefits.  (See Questions 48 and 49.)
  • Definition of Health Care Provider: The FAQ broadens the definition of who is considered a health care provider for purposes of the potential exemption from coverage under the FFCRA to 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, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.” (See Question 56.) Note that there is a separate definition of health care provider to be used for the purpose of identifying whose advice to individuals to self-quarantine can trigger rights under the FFCRA. (See Question 55.)
  • Intermittent Leave: Paid sick leave and expanded FMLA do not have to be provided intermittently.  However, the employer can agree to provide the benefits intermittently when an employee is teleworking or when the employee is still working on site but needs time off to care for the employee’s child whose school or child care provider are otherwise unavailable due to COVID-19 reasons.  When an employee is working on-site and seeks leave for any other reason, the benefits must generally be taken in full-day increments.  (See Questions 20-22).
  • Small Business Exemptions: The FAQs address that a small employer can be exempt from providing paid sick leave and expanded FMLA if:
    • Employer has less than 50 employees;
    • The reason for the leave is that the employee’s child’s school or child care provider is unavailable, due to COVID-19 related reasons; and
    • Employer determines:
      • Providing the leave 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 using the leave 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 enough workers to cover the work of the employee requesting leave and such services are needed for the small business to operate at a minimal capacity.

This test will require an individualized assessment for each leave request. Employers with fewer than 50 employees are still required to provide paid sick leave under FFCRA for any qualifying reason other than the need to take leave to care for a child whose school or child care is unavailable due to COVID-19.  (Questions 58 and 59.)

Final Takeaways

As with all other aspects of the COVID-19 pandemic response, laws are rapidly evolving.  Please reach out to your Spencer Fane attorney if you have questions on how this new act affects your business or organization.

This blog post was drafted by Elizabeth Wente. She is an attorney in the Spencer Fane LLP Springfield, Missouri office.