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Dept. of Labor’s Updated FAQs for Family First Coronavirus Response Act (Part II)

March 30, 2020

The Department of Labor (“DOL”) has again updated its guidance in Families First Coronavirus Response Act (“FFCRA”): Questions and Answers to address several topics concerning paid sick leave (under the Emergency Paid Sick Leave Act) and expanded family and medical leave (under the Emergency Family and Medical Leave Expansion Act).  Other topics addressed in this guidance are summarized in Miller Canfield’s e-alerts concerning the publication of the FAQs and the DOL’s first round of updates.

Small Business Exemption

An employer, including a religious or nonprofit organization, is exempt from requirements to provide paid sick leave or expanded family and medical leave if:

The viability of a small business as a going concern would be jeopardized if an authorized officer of the business has determined that:

Right to Return to Work

Generally, employers must return an employee to the same or nearly equivalent position at the end of paid sick leave or expanded family and medical leave.  However, an employee is not entitled to job protection in the following situations:

FFCRA Leave and Other Leave

Paid sick leave: Paid sick leave is in addition to other leave provided by applicable laws, an applicable collective bargaining agreement, or the employer’s policy. 

Expanded family and medical leave: An eligible employee’s entitlement to expanded family and medical leave is tied to the employee’s FMLA leave entitlement that is capped at a total of 12 weeks during the 12-month period used by the employer for FMLA.  In other words, the amount of any FMLA leave taken during that period by an employee will be subtracted from the available time the employee can use for expanded family and medical leave. 

Public Employer

Paid sick leave: Public sector employees are entitled to paid sick leave, unless:

Expanded family and medical leave: Public sector employees are entitled to expanded family and medical leave, unless:

Full Time Employee under the Emergency Paid Sick Leave Act

Under the Emergency Paid Sick Leave Act, an employee is considered full-time if the employee is normally scheduled to work 40 or more hours per week.  Conversely, a part-time employee is an employee who is normally scheduled to work fewer than 40 hours a week. 

The distinction between full- and part-time employees are not as important under the Emergency Family and Medical Leave Expansion Act because the amount of pay an employee is eligible to receive for expanded family and medical leave is determined based on the hours an employee normally works each week.

Health Care Provider

To determine whose advice to self-quarantine due to COVID-19 related concerns can be relied on as a qualifying reason for paid sick leave, a “health care provider” means a licensed doctor or medicine, nurse practitioner, or other health care provider permitted to issue a certification for FMLA purposes.

To determine who may be exempted from paid sick leave or expanded family and medical leave, the term “health care provider” broadly includes:

Emergency Responder

To determine who may be exempted from paid sick leave or expanded family and medical leave, an emergency responder is:

Son or Daughter

The phrase “son or daughter” under the FFCRA has the same meaning as it is given under the FMLA.  In other words, a son or daughter” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child for whom the employee is standing in loco parentis.  A “son or daughter” also includes a child of age 18 or older who has a mental or physical disability, and is incapable of self-care because of that disability.

This is part of our series of COVID-19 alerts providing clients with practical advice on measures they can take to navigate through these challenging times. If you have questions about the Department of Labor guidance, please call your Miller Canfield attorney or one of the authors of this alert.

This information is based on the facts and guidance available at the time of publication, and may be subject to change.