By: Brian R. CarnieChelsea G. CaswellA. Edward Hardin, Jr.Scott D. HuffstetlerErin L. KilgoreMichael D. LoweZoe W. Vermeulen, and David M. Whitaker

The U.S. Department of Labor’s Wage and Hour Division continues to burn the midnight oil providing much needed guidance to employers and employees regarding leave issues under the Families First Coronavirus Response Act.  Overnight, Saturday, the DOL posted a third set of Q&As (Q&As 38-59) that address a number of recurring employer questions.

“Son or Daughter”.  Leave under the expanded FMLA and emergency paid sick leave is available in those instances when an employee needs leave to care for a “son or daughter” because the child’s school or place of care has been closed or is unavailable due to Covid-19 precautions.  In the latest set of questions and answers, the DOL took the position that a “son or daughter” includes the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee is standing in loco parentis.  The phrase “son or daughter” also includes an adult son or daughter who has a mental or physical disability and is incapable of self-care because of that disability (Q&A 40).

12 Total Weeks of FMLA Leave.  A recurring question regarding the amount of FMLA leave to which an employee is entitled was answered by the DOL.  The expanded FMLA does not provide an additional 12 weeks of leave in addition to that provided by the existing FMLA.  If an employee has previously taken some of his or her 12-week FMLA entitlement during the FMLA leave year, then only the remaining FMLA leave is available for expanded FMLA purposes.  If the employee has previously taken all of his or her FMLA leave, then no additional leave is available under the expanded FMLA (until the employee becomes eligible for additional FMLA leave).  However, the amount of FMLA leave previously taken does not reduce the amount of leave available under the emergency paid sick leave provisions of the Act (Q&As 44-45).

Definitions of Health Care Provider and Emergency Responder.  Regarding health care providers, the DOL provided two different definitions, depending upon the context in which the term is used.  For purposes of determining who can advise an employee to self-quarantine due to concerns related to COVID-19, and thus create a qualifying reason for emergency paid sick leave, 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.  This definition is consistent with the prior definition of health care provider set forth in the current FMLA regulations.” (Q&A 55).

Conversely, for purposes of determining who may be excluded by their employer from receiving expanded FMLA leave and emergency paid sick leave because they are a “health care provider,” the DOL definition of health care provider is very expansive.  “[A] healthcare 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 provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.”  The definition also includes anyone employed by any medical services provider, medical products producer, or employer who is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccine, diagnostic vehicles, or treatments (Q&A 56).  Thus, the universe of those health care providers who may be denied leave under the Act is expansive.  Nevertheless, the DOL expressly encouraged employers to be judicious when using the definition of health care provider to exempt healthcare providers from the leave provisions of the Act.

As is the case with health care providers, the term “emergency responder” was defined expansively and leads to a number of types of employees being excluded from the leave provisions of the Act.  In particular, “an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients or those who services or otherwise needed to limit the spread of COVID in 19.”  Included within the definition of “emergency responder” are “military or national guard members, 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 skill 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  . . . .”  The DOL also encouraged employers to be judicious when using this definition to exempt emergency responders from the leave provisions of the Act  (Q&A 57).

Small Business Exemption.  Finally, the DOL provided much anticipated guidance related to the leave exemption for small business (those employers with fewer than 50 employees).  However, the exemption appears to only apply to the need for leave to care for a son or daughter because the son or daughter’s school or place of care has closed because of COVID-19 (which is the only qualifying event for expanded FMLA leave under the Act, but is one of the six reasons for emergency paid sick leave).  Thus, it appears that a small businesses must otherwise provide emergency sick and care leave.

Pursuant to the Q&As, a small business is exempt from providing expanded FMLA leave and emergency paid sick leave “if the employer employs fewer than 50 employees; 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 an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.”  (Q&A 59).

Under Q&A 58, a small business may claim this exemption if:

“[A]n authorized officer of the business has determined that:

  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.” (Q&A 58).

The new Q&As also address other topics, including topics related to public employers.

If you have questions, please contact Kean Miller labor and employment attorneys, Brian R. Carnie (318.562.2652), Chelsea G. Caswell (225.382.3405), A. Edward Hardin, Jr. (225.382.3458), Scott D. Huffstetler (225.389.3747), Erin L. Kilgore (225.389.3712), Michael D. Lowe (318.562.2653), Zoe W. Vermeulen (504.620.3367), and David M. Whitaker (504.620.3358).