Monday, March 30, 2020

Coronavirus Update 3-30-2020: DOL FAQs on the FFCRA, the threequel (and a Zoominar reminder) #coronavirus

A quick reminder that I’ll be live on Zoom today from 1 - 2 pm ET discussing all things Coronavirus, including the DOL’s most recent additions to its Families First Coronavirus Response Act FAQs (part 1 of which I covered here, and part 2 of which I’m covering below).

You can access the Zoominar here: (and don’t forget that Norah promised to join for a song at the end).

Now, onto the most recent development—the DOL’s weekend additions to its coronavirus paid family and sick leave FAQs (maybe its last before the law’s 4/1 effective date).

Here’s what the DOL has to say about some very important open issues.

Which of your employees are eligible for coverage?

Any U.S. full-time employee (40 hours or more per workweek), part-time employee (less than 40 hours per workweek), and “joint employee” working on your site temporarily and/or through a temp agency, are eligible for coverage.

Also, note that employees are only eligible for paid FMLA after 30 days of employment, while employees are eligible for paid sick leave on day one.

Who qualifies as a “son or daughter”?

For children under 18, an employee’s biological, adopted, or foster child, stepchild, legal ward, a child for whom the employee is standing in loco parentis.

For adults age 18 or over, the definition also covers a son or daughter that has a mental or physical disability, and is incapable of self-care because of that disability.

How does the expanded coronavirus paid leave interact with existing leave already taken by an employee under the FMLA?

Eligible employees are entitled to paid sick leave regardless of how much leave already taken under the FMLA.

An employee’s eligibility for expanded family and medical leave, however, is net the amount of FMLA leave an employee has already taken during the prior 12-month period.

Who is a “health care provider” eligible for exclusion by their employer from paid sick leave and/or expanded family and medical leave?

The DOL used a much broader definition of “health care provider” than most believed it would use in defining the scope of employees potentially exempt from paid FMLA and paid sick leave.

For purposes of the exemption, a “health care provider” is 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.

It also includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities to provide services or to maintain the operation of the facility, including 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.

Basically, any business that touches the health care industry can exempt any of its employees from coverage. Note, however, to minimize the spread of the virus, the DOL “encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.”

From which requirements of the Act may a small employer (less than 50 employees) claim an exemption?

A small employer can only claim an exemption from the paid FMLA, and from the paid sick leave for school or place of care closures, or child care provider unavailability, for coronavirus related reasons. A small employer can never claim an exemption from the paid sick leave provisions related to any other coronavirus related qualifying absences (i.e., personal or family care) (except for health care providers as defined above).

How does a small employer determine that compliance would “jeopardize the viability of the business as a going concern”?

An authorized officer of the business must make the self-determination that the small business meets one of the following three criteria:
  1. The provision of paid sick leave or expanded family and medical 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;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical 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
  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 or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

All businesses with fewer than 500 employees must be compliant with the Act by April 1.

* Image by Anemone123 from Pixabay