On April 1, 2020, the U.S. Department of Labor (DOL) released temporary regulations interpreting the Families First Coronavirus Response Act (FFCRA). This new law requires private employers with fewer than 500 employees, and certain public employers, to provide their employees with paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) or expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA).

Generally, under the new regulations, covered employers are required to provide employees:

  • Two weeks (up to 80 hours) of paid leave at their regular rate of pay if they are unable to work or telework because they (1) are subject to a federal, state or local government quarantine or isolation order; (2) have been advised by a health care provider to self-quarantine; or (3) are experiencing symptoms and seeking a medical diagnosis of COVID-19. In these circumstances, employers are not required to pay more than $511 per day and $5,110 in the aggregate over the entire paid sick leave period.

–   or   –

  • Two weeks (up to 80 hours) of paid sick leave at two-thirds of their regular pay rate because the employee is unable to work because of a need to (1) care for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) care for a child whose school or childcare provider is closed or unavailable due to COVID-19; or (3) the “employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”  Under these circumstances, employers are not required to pay more than $200 per day and $2,000 in the aggregate over the 2-week period.

After exhausting up to 80 hours of paid leave, an employee who cannot work or telework due to school closings or childcare unavailability will be entitled to up to an additional 10 weeks of paid expanded family leave at two-thirds the employee’s regular rate of pay based upon the number of hours the employee would normally be expected to work. However, employers are not required to pay more than $200 per day and $10,000 in the aggregate over the entire 10-week period.

 

Returning to Work

The DOL provides that in most instances, an employee is entitled to be restored to the same or an equivalent position upon return to work after taking paid sick leave and/or expanded family and medical leave under the FFCRA. However, an employee is not protected from certain employment actions, such as layoffs and business closures, that would have affected the employee regardless of whether he or she took leave. The employer must be able to show that the employee would have been laid off even if the employee had not taken leave.

In addition, an employer that has fewer than 25 employees does not need to restore an employee to his or her job if the employee took leave to care for a child whose school or childcare provider is closed or unavailable due to COVID-19, and the following hardship conditions exist:

  • The employee’s position no longer exists due to economic conditions or other changes in operating conditions of the employer (1) that affect employment; and (2) are caused by a public health emergency during the period of leave;
  • The employer made reasonable efforts to restore the employee to the same or an equivalent position; and
  • If the employer’s reasonable efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available during the following year. The one-year period begins either on the date the employee’s leave concludes or the date 12 weeks after the employee’s leave began, whichever is earlier.

 

Small Business Exemption

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern. Under the DOL’s regulations, a small business may claim the exemption if:

  • Paid sick leave or expanded family and medical leave would result in business expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
  • The absence of the employee requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are qualified and available to perform the services provided by the employee requesting leave, and these services are needed for the business to operate at a minimal capacity.

The DOL requires that an authorized officer of an employer electing to proceed under the small business exemption document the determination and retain the documentation. The DOL also requires that a small business that elects to take this exemption still post the DOL’s notice of employee rights under the FFCRA, which may be “posted” by emailing the notice to covered employees.

 

Health Care Provider Exemption

The FFCRA also provides that employers may exclude a “health care provider” from the statute’s paid sick leave and/or family and medical leave provisions. The DOL’s regulations broadly define a health care provider as 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.

The regulations extend this exemption to any individual employed by an entity that contracts with any of the institutions described in the primary definition “to provide services or to maintain the operation of the facility,” as well as 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.”

 

Please contact Webb Shackleford PLLC if you have questions or concerns about the legal impact of COVID-19 on you or your business.