Labor Dept. Issues More Q &A’s: Offsets For FMLA Already Taken and Who Is A Health Care Provider?

  • Mar 30, 2020
  • COVID-19
  • Dennis J. Merley and Grant T. Collins

As employers prepare to implement the paid leave requirements of the “Families First Coronavirus Response Act” or “FFCRA” the U.S. Department of Labor (DOL) continues to issue informal guidance explaining many of the key provisions of the law. Our summary of their previous guidance is available here.

Over the weekend, the DOL was at it again as they issued 22 new FAQ’s. Most of them seem to repeat previous pronouncements or simply remind us that the ordinary definitions and interpretations from the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) apply to these new laws as well.

However, the Q&A’s did cover two extremely key issues: (1) the effect of FMLA leave that the employee has already taken upon that employee’s entitlement to expanded FMLA provided by the FCCRA; and (2) the definitions of “health care providers” and “emergency responders” for purposes of the exemption from providing Emergency Paid Sick Leave (EPSL) and Emergency FMLA (expanded FMLA) under the FFCRA.

Below is a summary of the key provisions of the newest FAQ’s:

#44 – 45: How Much FMLA Can an Employee Take in a Year?

The new Q&A’s verify that while the new expanded FMLA provision allows up to 12 weeks off for certain defined COVID-19 related events, that amount is reduced by the amount of time that an employee has already taken for other FMLA reasons. Thus, if an employee has already taken 2 weeks of FMLA in the FMLA year, that individual is eligible for only 10 weeks of expanded FMLA.  Of course, if the employee becomes eligible for more FMLA under a rolling FMLA eligibility determination, or because the employer’s fixed date for a new FMLA year has arrived, the employee is again eligible for 12 weeks of leave.

Similarly, if an employee takes 4 weeks of expanded FMLA now, that individual will only have 8 weeks left in their FMLA year for time off due to medical reasons, parenting leave, or other FMLA qualifying events (including more expanded FMLA leave if needed).

#46: Does time taken as EPSL count against other types of paid sick leave offered by the employer?

The DOL reminded us that any time taken as EPSL is in addition to any paid sick time that the employer might offer under applicable law, policy or collective bargaining agreement.

#55: Who is a “health care provider” whose advice to self-quarantine due to COVID-19 can be relied on as a qualifying reason for paid sick leave?

The DOL responds that a “health care provider” in this sense is a licensed doctor of medicine, nurse practitioner, or anyone else allowed to issue FMLA certifications under the ordinary FMLA regulations.

#56 – 57: Who is a “Health Care Provider” or “Emergency Responder” who may be excluded by their employer from EPSL and/or expanded FMLA?

The DOL has created a sweeping exemption for “anyone” employed by a health care employer.

Recall that under the FFCRA, an employer of “healthcare providers” and/or “emergency responders” may elect to exclude such individuals from eligibility for EPSL or expanded FMLA. The DOL has interpreted announced that “healthcare provider” includes “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 (emphasis supplied).

The DOL also explained that this exemption also applies to contractors with such facilities:

This definition 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.

While the exclusion appears not to include office employees that are employed at separate facilities, it certainly includes “anyone” (e.g. office, custodial staff and other persons) employed at any actual acute care facility, clinic, or long-term care facility.

As for first responders, the DOL defines them to be “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.”

As to both health care providers and emergency responders, the DOL encourages employers to be judicious in exempting such employees from these provisions in the interest of minimizing the spread of COVID-19.

Bottom Line

By and large, these new FAQ’s provide very helpful guidance to employers in implementing their obligations under the new FFCRA.

For all of the latest critical COVID-19 information for employers, check our continually updated FAQ’s by clicking on the banner headline at the top of the Felhaber Larson web page.