Department of Labor Clarifies Exemptions to Families First Coronavirus Response Act (FFCRA)

As you know from our previous updates, on March 18, 2020, the President signed into law the Families First Coronavirus Response Act (FFCRA). The Department of Labor (DOL) has since clarified that the law goes into effect on April 1, 2020 (not April 2 as calculated by the vast majority of employment practitioners). Over the weekend, the DOL also published guidance clarifying the two available exemptions under the law: The Health Care Provider Exemption and Small Business Exemption. The full text of the guidance can be found here:

For exclusions pertaining to health care providers and first responders, see questions 56 and 57. For the qualifications to be excluded as a small business, see questions 58 and 59.

Broad Definition of Health Care Provider

In a tacit acknowledgment that health care personnel are needed on the front lines to fight the virus, the DOL has broadly defined “health care provider” for purposes of the exclusion, thereby allowing the identified health care entities to exclude all of their employees from FFCRA’s requirements. As stated in the guidance, an excluded 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.

This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. The definition also includes employees of any entity that contracts with the above institutions, employers, or entities “to provide services or to maintain the operation of the facility” and includes “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.” In addition, the DOL gives the state’s highest official the discretion to exclude any other health care provider or emergency responder that is necessary for the COVID-19 response.

Although the DOL has provided this expansive definition of “health care provider,” it simultaneously cautions businesses to apply the exemption “judiciously” as to prevent the spread of COVID-19. Remember, the exemption applies to individuals, not the business itself. So, you should make a case-by-case decision on whether a specific employee should be exempted from leave or not, when the need for leave arises.

Emergency Responders Are Also Excluded

The DOL also excludes from the FFCRA the following emergency responders: an employee who is 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. The list of excluded emergency responders should come as no surprise, and 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; and individuals who work for facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

Like with the health care provider exemption, DOL has cautioned employers to apply this exemption “judiciously.” Accordingly, the same case-by-case analysis and decision-making process should apply.

The Small Business Exemption

The FFCRA and prior DOL guidance indicated that, if providing the required leave would “jeopardize the viability of a private business with fewer than 50 employees as a going concern,” the employer could potentially take advantage of a small business exemption. The DOL has now clarified when that exemption can apply.

Small businesses, including religious or nonprofit organizations, with fewer than 50 employees are exempt from providing paid sick leave or expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 reasons where an authorized officer of the business determines that:

  • Providing 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 or employees requesting 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 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.
The DOL summarizes these requirements in question 59 of the guidance. In short, small businesses exempt from the FFCRA leave requirements only if all of the following conditions are satisfied:
  • The employer employs fewer than 50 employees;
  • The leave is requested because the employee has a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • An authorized officer of the business has determined that at least one of the three conditions listed above is satisfied.

Thus, although the guidance references exemption from the sick leave requirements from the Act, this specific clarification supports that small employers are only exempt from providing the expanded FMLA leave benefit related to school and daycare closures.

Small employers seeking to take advantage of this exemption do not need to “apply” for the exemption or otherwise submit anything to the DOL. However, employers should create strong documentation supporting why the exemption was relied upon to deny employee leave.

As with any circumstance arising from COVID-19, please confer with your employment counsel before relying on these exemptions in taking specific action. We’re here to help.

Cairncross & Hempelmann Employment Group

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice.