COVID-19: I'm From The Government, And I'm Here To Help...
Posted March 31, 2020

As employers scramble to answer the myriad of questions raised by the recent FFCRA legislation (effective April 1, 2020) and the even more recent CARES Act, the government is working to provide answers to those questions. Updates are issued each day, and while it is challenging to keep up with the onslaught of information, doing so can streamline the process of navigating these challenging times.

In this blast, we provide a variety of updated resources regarding the roll-out of FFCRA benefits this week, access to CARES Act guidance, and newly-issued information from California's Department of Fair Employment & Housing regarding employment practices during the coronavirus.

Guidance on Accessing CARES Act Benefits For Small Businesses

The Senate Committee for Small Business & Entrepreneurship issued the "Small Business Owner's Guide to the CARES Act." The guide provides additional information about how employers can access the benefits provided by the CARES Act, including the Payroll Protection and the SBA Economic Injury Disaster Loans and Grants. To review this business guide, click here.

DFEH Guidance on Discrimination Issues Related to Avoiding & Responding to Workplace Exposure

Businesses are asking questions about whether they can take employee temperatures, what kind of medical certifications are appropriate, whether workers can be forced to wear protective gear, and what to do in the event of workplace exposure. The state agency tasked with addressing claims of discrimination, harassment and retaliation, the Department of Fair Employment & Housing ("DFEH") has issued guidance addressing these and other questions. To review this DFEH guidance, click here.

FFCRA Model Notices Must Be Posted By 4/1/20

The DOL previously issued a model notice of rights afforded to employees under the Families First Coronavirus Response Act ("FFCRA"). That notice must be provided to all workers on or before April 1, 2020, the effective date of the Act. For a copy of the English language notice for non-federal employers, click here.

The DOL has now issued the same employee poster in Spanish. Employers with Spanish-speaking employees should post the notice in both languages; other language versions may be forthcoming. For a copy of the Spanish language notice for non-federal employers, click here.

In addition to publishing the required model notices, employers should issue a policy or memo to employees to clarify the benefits that will be provided under the FFCRA, and how employees would request those benefits from the employer. It is advisable to create a stand-alone policy for the FFCRA rather than updating existing employee handbooks, as the FFCRA benefits last only until 12/31/20 and would not modify the employer's usual workplace policies beyond that date.

DOL Updates Its Guidance (Again)...

The Department of Labor ("DOL") has issued continuous updates to its guidance on the FFCRA; the most recent update published on Saturday, March 28, has extended the guidance to 59 separate questions and answers. Updates to the DOL guidance are contained within the original guidance document; employers should review the DOL guidance on a regular basis for ongoing updates. The DOL guidance can be accessed here.

Among other provisions, key excerpts from the most recent guidance update include the following:

Is the FMLA leave under FFCRA in addition to existing FMLA leave for employers with 50 or more employees, or is FMLA time already taken by the employee counted against this new FMLA benefit?

In question 44 of its updated guidance, the DOL confirms that eligible employees are entitled to emergency paid sick leave under the FFCRA regardless of any prior use of FMLA. However, for employers already covered under FMLA prior to April 1, 2020, any leave taken by the employee for FMLA purposes in the applicable 12-month period is counted against the new FFCRA FMLA benefit, thereby limiting the additional FMLA time to which the employee might be able to take under the FFCRA.

Employers already subject to FMLA should review their policies to clarify their chosen method of calculating the 12-month period for FMLA consideration. The method least burdensome to employers is the rolling look-back method. Under this calculation model, when an employee requests FMLA leave, the employer reviews the preceding 12 months to determine how much FMLA has already been used by that employee. The employee would then be entitled to take any period of leave remaining after deducting FMLA time already used. If the employer has not defined its calculation method, the method most favorable to the employee will be applied, which could substantially increase the total amount of time the employee may be off work in any calendar year.

Who qualifies as a "health care provider" under the FFCRA?

Health care providers are exempt from the FFCRA leave benefits. In question 56 of its updated guidance, the DOL has defined a health care provider as "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. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions."

The DOL also notes that its definition of health care provider "includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes 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." The definition also includes any individual determined by the highest state official to be necessary for that state's response to COVID-19.

Who qualifies as an "emergency responder" under the FFCRA?

Emergency responders are exempt from the FFCRA leave benefits. In question 57 of its updated guidance, the DOL defined an "emergency responder" as "an employee who is 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 includes but is 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."

Again, the definition also includes any individual determined by the highest official of the state to be necessary to the state's response to COVID-19.

How do I determine if my small business qualifies for an exemption from the FFCRA?

Most small businesses (under 50 employees) have questioned whether they might be eligible to apply for an exemption from the FFCRA. The DOL's updated guidance provides further information about where this exemption will be applicable.

In question 58, the DOL notes that an employer with fewer than 50 employees could be exempt from the FFCRA requirements when providing such benefits "would jeopardize the viability of the small business as a going concern." The small business may claim the exemption when an "authorized officer of the business" has determined that:

  • 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;
  • 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
  • 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.

Unfortunately, the DOL has not yet explained exactly how small businesses might actually apply for the exemption or waiver, and we await further guidance from the DOL on this topic.

Again, employers should review the DOL's guidance in its entirety on an ongoing basis to understand the full scope of their obligations under the FFCRA. As noted above, the DOL guidance document can be accessed here.

For further questions or legal assistance with COVID-19 issues specific to your company, contact the employment attorneys at LightGabler.

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