Following two rounds of guidance on the paid leave provisions of the Families First Coronavirus Response Act (FFCRA) last week, the Department of Labor (DOL) released additional guidance this weekend addressing issues of critical importance to many covered employers: the scope of the FFCRA’s health care provider and emergency responder exemptions, and the scope of the small business exemption for private employers with fewer than 50 employees, along with answering other questions. DOL’s most recent guidance is summarized below and can be found here. DOL has confirmed it will be issuing regulations to implement the FFCRA.

The health care provider and emergency responder exemptions

The FFCRA authorizes employers to exempt employees who are health care providers and emergency responders from the FFCRA’s paid sick leave and paid expanded Family and Medical Leave Act (FMLA) requirements. DOL has defined “health care provider” and “emergency responder” broadly for purposes of these exemptions.

Under the health care provider exemption, employers may exempt:

  • “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,” including “any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions”;
  • “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”;
  • “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”; and
  • “any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”

Under the emergency responder exemption, employers may exempt:

  • “an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of . . . patients, or whose services are otherwise needed to limit the spread of COVID-19,” including but 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 as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility”; and
  • “any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.”

The breadth of these exemptions is underscored by the wide range of entities and services listed, and by DOL’s reference to entities providing “similar” medical services in the definition of health care provider; inclusion of “other skills needed to provide aid in a declared emergency” in the definition of emergency responder; and delegation of authority to Governors, the Mayor of D.C., and the highest officials of U.S. territories to recognize additional exemptions.

The small business exemption

The FFCRA authorizes DOL to exempt small businesses—defined as private employers with fewer than 50 employees—from the obligation to provide certain paid sick leave and paid expanded FMLA leave when granting such leave “would jeopardize the viability of the business as a going concern.” The exemption applies only to leave requested because an employee needs to care for a son or daughter whose school is closed or whose child care provider is unavailable, and not for any of the other qualifying COVID-19 related needs under the FFCRA.

DOL’s latest guidance states that small businesses can claim the small business exemption when an authorized official of the business has determined that any one of three conditions is met:

  • provision of 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”;
  • “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
  • “[t]here are not sufficient workers who are able, willing, 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” leave, “and these labor or services are needed for the small business to operate at a minimal capacity.”

DOL’s guidance says that small businesses should document why they meet the criteria, but also says that employers should not submit materials to DOL when claiming the exemption. Additional details may be provided in regulations that DOL is expected to release in April.

Other matters

DOL’s latest round of guidance addresses several other matters, including

  • job restoration rights (employees are generally entitled to be restored to the same or an equivalent position upon return from both paid sick leave and paid expanded FMLA leave, subject to certain exceptions; however, if an employee would have been laid off or suffered another adverse employment action for a legitimate reason regardless of taking leave, it is not unlawful for the employer to proceed with that action notwithstanding that the employee is on leave under the FFCRA);
  • relationship of paid expanded FMLA leave to other types of FMLA leave (employees are entitled to a maximum of 12 weeks of FMLA leave in a 12-month period for all reasons covered by the statute, including paid expanded FMLA leave; thus, employees previously covered by the FMLA who have recently used FMLA for other reasons will have reduced their FMLA balance for purposes of paid expanded FMLA leave, and employees who take paid expanded FMLA leave will reduce their FMLA balance for purposes of other types of FMLA leave); and
  • coverage of public sector employees (generally covered, subject to the health care provider and emergency responder exemptions, and exceptions for certain federal employees).

For additional information about the FFCRA and DOL’s previously issued guidance, see our initial post about the FFCRA and further posts here, here, and here. For more information about the FFCRA, employment issues related to COVID-19, or other employment law matters, please contact the authors of this post or the Hogan Lovells lawyer with whom you work.