• The DOL has now provided more details about how businesses with fewer than 50 employees may qualify for an exemption from providing certain types of COVID Paid Sick Leave or COVID FMLA.
• Employees generally have job protection when taking COVID Paid Sick Leave or COVID FMLA, but can be terminated for legitimate business reasons, such as closure of a worksite.
• COVID Paid Sick Leave is additional paid time off – in addition to any paid sick leave to which an employee may otherwise be entitled under state or local law or an employer’s policy.
• The FAQs have additional answers on a number of topics including: the interplay between regular FMLA time off and COVID FMLA; employees’ remedies under the law; counting employees; definitions of “health care providers,” “emergency responders,” and “son” or “daughter”; and applicability of the law to public sector employees. 

• How does a business with fewer than 50 employees qualify for an exemption under FFCRA? (See Questions #58 and #59): In a much anticipated FAQ, the DOL has given employers at least some clarity on whether they can claim an exemption. The DOL states that a small business may claim this exemption if:

1. the employer has fewer than 50 employees;
2. the leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
3. an “authorized officer of the business” has determined that:

• the provision of COVID Paid Sick Leave or COVID FMLA 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 COVID Paid Sick Leave or COVID FMLA 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 COVID Paid Sick Leave or COVID FMLA, and these labor or services are needed for the small business to operate at a minimal capacity.

• Other than in the limited instances of leave taken because the child’s school or place of care is closed, or the child care provider is unavailable, small businesses are not exempt from FFCRA.

• It does not appear at this time that employers will have to submit any documentation to the DOL to claim the exemption. Thus, it is recommended that any small business that wants to rely on the exemption should be certain to document which authorized representative of the business made this determination and the specific factual reasons for doing so (with supporting material where appropriate).

• Can employers terminate employees who are taking COVID Paid Sick Leave or COVID FMLA? (See Question #43): Generally, no, because employees taking such time off have a right to return to their same position or an equivalent one. However, the DOL clarifies that employers may terminate employees as long as the termination is for “legitimate business reasons, such as the closure of [the employer’s] worksite.” Importantly, the DOL makes it clear that the onus will be on the employer “to demonstrate that [the employer] would have been laid off even if [the employee] had not taken leave.”  While this guidance may give some employers comfort about implementing layoffs that include employees taking this leave, it also underscores the importance of making well-documented legitimate business decisions.

• What are the consequences of an employer not complying with FFCRA? (See Questions #41 and #42):  An employee may file a complaint with the DOL’s Wage and Hour Division or a civil lawsuit.

• What if the employee who is taking COVID Paid Sick Leave or COVID FMLA is a highly compensated “key employee” as defined by the FMLA? Do you have to hold his/her job? (See Question #43): It depends. The DOL states that an employer may refuse to return a highly compensated “key” employee, as defined under the FMLA, to his/her prior position if the leave was to care for the employee’s own son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions exist: (a) the position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of the leave; (b) the employer made reasonable efforts to restore the employee to the same or an equivalent position; (c) the employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and (d) the employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the leave began, whichever is earlier.

• What if I have fewer than 25 employees? Do I have to return employees who take COVID Paid Sick Leave or COVID FMLA back to work? (See Question #44):  It depends. The same analysis would apply as outlined in the answer for “key” employees.

• What if an employee has already used up all of his/her FMLA leave prior to needing leave for a COVID-qualifying reason? (See Question #44): The DOL states that if an employee has already taken 12 weeks of FMLA during the applicable 12 month period, an employee may not take additional COVID FMLA time. If, however, an employee had previously taken only a portion of the 12 weeks, they will be entitled to take the remaining period of time for COVID FMLA. The FAQ sets forth some helpful examples.

• Similarly, if an employee takes some COVID FMLA time, but not the full 12 weeks, will he/she still be able to take more FMLA time off during the rest of the 12 month period for another qualifying reason? (See Question #45): Yes. The FAQ sets forth some helpful examples. This FAQ also states that COVID Paid Sick Leave does not count towards the 12 weeks during the 12 month period, indicating that there could be some scenarios where employees receive 14 weeks of FFCRA benefits

• If an employee takes COVID Paid Sick Leave, does that count against other types of paid sick leave to which the employee is entitled under state or local law or an employer’s policy? (See Question #46):   No. COVID Paid Sick Leave is in addition to other paid sick leave.

• How do I know who is a “full-time”or “part-time” employee for purposes of COVID Paid Sick Leave? (See Questions #48 and #49): Full-time employees are those who are normally scheduled to work 40 or more hours per week. Part-time employees are those who are normally scheduled to work fewer than 40 hours per week.  Note that COVID FMLA does not distinguish between full-time and part-time employees, but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.

• For COVID Paid Sick Leave, who is a “healthcare provider” for purposes of determining whether individuals qualify under the self-quarantine reason? (See Question #55): The DOL states that the term “health care provider,” means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

• Does the COVID Paid Sick Leave time off apply towards an employee’s waiting period for purposes of starting health care coverage? (See Question #51). Yes. Employees who have elected health coverage, but need to go out on COVID Paid Sick Leave during the waiting period, are treated as if they had continued to work.

• Is there anything new I should know about how to count the 500 employees? (See Questions #38, #39 and #50): Yes. FAQ #50 clarifies that the number of employees should be counted “on the day the employee’s leave would start to determine whether the employer has fewer than 500 employees” under FFCRA.  FAQs #38 and #39 seem to reiterate what the DOL has previously provided on “joint employers” (and refer back to FAQ #2, which we have reported on in a prior e-alert).

• Are employees who are “health care providers” exempt from COVID Paid Sick Leave and COVID FMLA? If so, how do I know if my employees are “health care providers”? (See Question #56): An employer may elect to exclude health care providers, who, for this purpose under the FFCRA are employees who are employed in a wide variety of medical settings. For further guidance on this, including a listing of all medical settings that are affected, please refer to the entire FAQ.

• What about “emergency responders”? Are they exempted, too? (See Question 57): An employer may elect to exclude emergency responders, who are defined as employees 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. This provision also applies to a wide array of emergency responders, enumerated in the FAQ. For further guidance on this, please refer to the entire FAQ.