On April 6, 2020, the United States Department of Labor (DOL) published a set of regulations in the Federal Register implementing the paid sick leave and emergency family medical leave expansion provisions of the Families First Coronavirus Response Act (FFCRA).  The regulations are effective through December 31, 2020.

As discussed in our previous blog posts, the FFCRA, signed into law by President Trump on March 18, 2020, requires most employers with fewer than 500 workers to provide paid time off for specified reasons related to COVID-19, including that (1) the employee is suffering from COVID-19 symptoms and seeking a medical diagnosis for same; (2) the employee is caring for a family member subject to a quarantine; or (3) the employee is caring for a child whose school or childcare center is closed due to the current pandemic or for a similar reason.

The FFCRA also sets up a system, administered by the Department of the Treasury, to reimburse those employers, through tax credits, for the cost of providing the required paid leave.

Small Business Exemption

Of particular note, the DOL’s regulations detail the criteria for exempting some small businesses from providing paid leave related to care for children whose schools or childcare centers have closed due to COVID-19.  Generally speaking, the small business exemption is available for employers with fewer than 50 workers for which the imposition of such leave requirements would jeopardize business viability.

The DOL, in its new regulations, has set forth the specific criteria for determining when an employer with fewer than 50 workers can deny an employee paid sick leave or expanded family and medical leave to care for the employee’s child whose school or place of care is closed.

Under the regulations, a small business may deny such leave when:

  1. Such leave would cause the small business’s expenses and financial obligations to exceed available business revenue and cause the small business to cease operating at a minimal capacity;
  2. the absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capability of the business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. the small business cannot find other 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 requesting leave, and these labor or services are needed for the small business to operate at a minimal capacity.

The DOL requires that an “authorized officer” of an employer electing to proceed under this small business exemption document the determination and retain the documentation in the business’s records.  The DOL also mandates that a small business electing to proceed under this exemption still post the DOL’s notice of employee rights under the FFCRA, which is available here, and may be “posted” by emailing the notice to covered employees.

Finally, as noted above, it is important to keep in mind that the small business exemption does not apply to the FFCRA’s leave requirements applicable to workers who are directly affected by the virus – the exemption is only available where a worker is requesting time off to care for a child whose school or childcare center has closed due to COVID-19.

Health Care Provider Exclusion

The FFCRA also provides that a “health care provider” may be excluded by their employer from the statute’s paid sick leave and/or expanded family and medical leave provisions.  Specifically, the FFCRA states that an “employer of an employee who is a health care provider” may “elect to exclude such employee” from the FFCRA’s new leave provisions.

The DOL’s regulations now clarify the definition of “health care provider” for purposes of determining the employees who may be excluded in this regard by their employer.

Under the regulations, a “health care provider” is:

Anyone employed at any doctor’s office, hospital, health care center, clinic, postsecondary 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.

The regulations state that this definition also includes (1) individuals and entities that contract with any of the institutions described in the primary definition to “provide services or maintain the operation of the facility,” as well as (2) anyone employed by an 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.”