At the time of passage of the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) was tasked with issuing guidance on how a “small employer” might be exempt from providing paid sick leave and expanded FMLA benefits if doing so affected the business’s viability. The DOL has now issued guidance that addresses how this viability exemption can be met. Specifically, the DOL states that an employer, which includes religious or nonprofit organizations, with fewer than 50 employees (small business), is exempt from providing paid emergency sick leave and expanded FMLA paid leave pursuant to the FFCRA if doing so “would jeopardize the viability of the small business as a going concern” as determined by an authorized officer of the business. This determination is based on said officer finding that one of the three following conditions exists:
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 causing the small business to cease operating at a minimal capacity;
The absence of 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.
In sum, a small business may be exempted from FFCRA requirements if it can show that there is not enough revenue coming in to afford the expanded benefits, not enough skilled workers to do the specialized work critical to the business, or not enough available workers to do the work to keep the business going.
It should be noted, however, that the DOL’s guidance on the small employer exemption also “encourages” employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety. Also, the DOL’s guidance may give the small business protection today, but time may change the analysis.
While the initial say on the business’s viability is the employer’s call, employers will likely be scrutinized down the road.
BOTTOM LINE: Any business contemplating the “small employer” exemption to the FFCRA should seek advice and counsel from competent labor law counsel.
On March 28, 2020, the U.S. Department of Labor (DOL) issued an update to its “Families First Coronavirus Response Act: Questions and Answers” to address, among other things, the Families First Coronavirus Response Act (FFCRA) provisions that allow employers of “health care providers” and “emergency responders” to exclude such employees from the FFCRA’s emergency sick leave and expanded FMLA provisions. The specific questions that address the provisions for health care providers and emergency responders shown in this article can be found on the DOL website and read as follows:
Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care 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 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.
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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.
The DOL also defined “emergency responder” for purposes of the FFCRA exclusions:
Who is an emergency responder?
For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is 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. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.
Employers having employees fitting the definitions above need to remember that the health care provider and emergency responder exclusions are discretionary, not automatic. As such, and in order to avoid confusion (and litigation down the road), we recommend that employers that intend to use either exclusion provide a short, simple notice to their employees to inform them of the fact that because they are included within the DOL’s definition of “health care provider” and/or “emergency responder,” and are essential to the fight against COVID-19, they are not eligible for emergency sick leave or expanded FMLA leave under the FFCRA. Such a notice should also advise employees that these exclusions do not affect their eligibility for FMLA leave under the terms of the FMLA in place prior to FFCRA enactment.
And all employers should bear in mind that the fairly expansive definition of health care provider discussed above does not apply to the definition of a health care provider who can certify an employee’s need for FMLA leave. That definition remains limited to, essentially, licensed doctors of medicine, nurse practitioners, and certain others as discussed in FMLA regulations in place prior to FFCRA enactment.
While there is some “chatter” from Washington concerning potential “hazard pay” for these workers, employers who use these exclusions are permitted to implement their own policies and benefit programs unique to their workers. Employers should also remember to keep in mind any local or state paid leave mandates currently in place or that may develop in the coming weeks.
Contributed by SmithAmundsen’s COVID-19 Task Force, March 18, 2020
As we previously reported, on March 14, 2020, the U.S. House of Representatives passed House Bill 6201 (HR6201). The legislation seeks to protect private sector workers and government employees during the COVID-19 pandemic. In the face of some pushback from the “small business community” and other “special interests,” the House subsequently revised the original legislation and delivered it to the U.S. Senate on March 16, 2020. Today, March 18, 2020, the U.S. Senate passed a modified bill for the President’s signature. The mandates focus on three (3) primary areas that employers must IMMEDIATELY pay close attention to: 1) PAID LEAVE; 2) EXPANSION OF FMLA LEAVE; and 3) EXPANSION OF UI BENEFITS (including the possible extension of UI benefits beyond 26-weeks). Once signed into law, the mandates are set to expire on December 31, 2020.
Paid Sick Leave:
All private sector employers with LESS THAN 500 employees and all government employers must pay any employee 2-weeks of paid leave (up to 80 hours for full-time workers, and the average number of hours over a standard 2-week period of time for part-time workers).
All private sector employers with 500 OR MORE employees (regardless of location) are exempt.
Paid sick leave will be provided to any employee who is not able to work or able to work remotely (“telework”) under the following circumstances:
Subject to a government quarantine or isolation order related to COVID -19;
Been advised by health provider to self -quarantine due to COVID -19;
Experiencing symptoms of COVID -19 and seeking a medical diagnosis;
Caring for an individual subject to quarantine order or self -quarantine;
Caring for children if schools are closed or their caregiver is unavailable because of a public health emergency ; or
A “catch all” category for other substantially similar conditions as may be specified by the Secretary of Health and Human Services in consult with other federal agencies.
Employers with less than 50 employees may be exempt from this paid sick leave mandate. The U.S. DOL will publish regulations that will guide small employers on the exemption process. The exemption will be triggered if the “viability” of the business is in jeopardy — due to the mandates. There is also an exemption for healthcare workers and emergency responders.
Such paid sick leave appears to be NOT in addition to other paid sick leave policies or local/state mandates. Also, there is nothing prohibiting an employer from changing its voluntary paid time off policies after the effective date.
The amount of paid leave is capped. Employees are compensated at the higher of their regular rate of pay, the federal minimum wage, or the local minimum wage, but not to exceed $511 per day and $5,110 in the total.
However, if an employee must care for a sick family member, a child unable to attend school, or because they meet the criteria for “similar conditions,” then they are to be paid 2/3rds of the rate of their regular rate of pay, but not to exceed $200 per day and $2,000 in total.
Each quarter, private sector employers are entitled to a tax credit equal to 100% of the qualified sick leave wages paid.
The tax credit will be applied against the employer’s Social Security taxes.
Due to concerns over an employer’s cash flow, the U.S. Treasury Secretary has broad regulatory authority to help employers meet their financial obligations while awaiting the tax credit.
The employer can also seek a tax credit to offset any costs of continuing to provide health insurance while the worker is utilizing this benefit.
The payments made under these mandates are not considered wages for Social Security payroll tax purposes.
Interestingly, the self-employed can also receive the same tax credits as if they were employed by an employer under the new paid sick leave mandate.
2. Paid Family and Medical Leave (FMLA):
All private sector employers with LESS THAN 500 employees and all government employers must provide any employee (who has been employed for 30 calendar days or more) up to 12 weeks of paid family and medical leave (FMLA) in order to care for children (under 18), if and when: a) schools are closed or daycare is unavailable because of the current emergency and b) the employee is unable to work or work remotely (“telework”).
There is no 75 mile radius or hours worked requirement.
All private sector employers with 500 OR MORE employees (regardless of location) are exempt.
After 10 days (or what would likely be the equivalent of the paid sick leave mandate as summarized above), an eligible employee would be entitled to additional pay at the rate of 2/3rds his or her regular rate of pay.
Employers with less than 50 employees may be exempt from this paid leave mandate. The U.S. DOL will publish regulations that will guide small employers on the exemption process. The exemption will be triggered if the “viability” of the business is in jeopardy — due to the mandates. Further, such employers will not be subject to civil penalties for violating this leave mandate. There is also an exemption for healthcare workers and emergency responders whereby their employers may exclude them at the employer’s discretion.
Such leave appears to be NOT in addition to other sick leave policies or local/state mandates. Also, there is nothing prohibiting an employer from changing its voluntary leave policies after the effective date.
The paid leave component here is also capped. The caps are $200 per day and $10,000 in total.
Each quarter, private sector employers will be entitled to a tax credit equal to 100% of any paid FMLA benefits.
Again, due to concerns over an employer’s cash flow, the U.S. Treasury Secretary has broad regulatory authority to help employers meet their financial obligations while awaiting the tax credit.
The employer can also seek a tax credit to offset the costs of continuing to provide health insurance while the employee is on this leave.
Paid sick leave is not considered wages for Social Security payroll tax purposes.
Self-employed individuals can also receive the same tax credits as if they were employed by an employer under the new paid sick leave mandate for up to 50 days.
3. Unemployment Compensation:
The federal government is allowing and encouraging states to be more flexible with respect to eligibility.
The federal government will provide states $1 billion in additional funding for UI benefits.
HR6201 also authorizes states to extend unemployment benefits beyond 26 weeks should they experience higher levels of unemployment.
President Trump is expected to sign this any moment!
SmithAmundsen’s Labor & Employment COVID-19 Task Force is continuing to monitor all local, state and federal orders and legislative initiatives in these unprecedented times. Be assured that we will continue to provide updates where and when warranted. We will also be providing ongoing webinars on the subject to try and help employers operate as effectively and safely as possible. With that in mind, please do not hesitate to contact your SA relationship attorney in the days and weeks ahead for direct guidance. We are here 24/7.
The average life expectancy in the U.S. has declined for three consecutive years. The Centers for Disease Control and Prevention (CDC) links that decline to three factors: the rise in drug overdoses, an increase in liver disease, and a rise in suicide rates. More than 2 million Americans from all walks of life suffer from an opioid use disorder (OUD), and about two-thirds of those people are in the workforce. This has a tremendous financial impact on employers: In 2016, U.S. large employers covered $2.6 billion on treatment for OUD and overdose, up from $0.3 billion in 2004.
OUD and substance use disorder (SUD) more generally have a negative impact on the workplace through increased absenteeism, impaired job performance, and a decrease in the eligible workforce either due to candidates failing pre-employment drug screenings or fewer candidates applying as a result of their dependency. Employers can combat these issues by increasing accessibility to various treatments through their health plans and adopting policies allowing time for necessary treatment.
Studies indicate that the majority of employees would not seek help for a prescription opioid problem due to perceived stigma in the workplace. Educating employees about the risks and signs of opioid use disorder and taking steps to minimize stigma surrounding OUD/SUD can help address – and reduce – the problem before it starts. This can be accomplished by discussing the prevalence of OUD/SUD in America across all races, genders and socio-economic groups and recognizing individuals who have overcome the disease.
If an employee does come forward to seek help with OUD or SUD, understanding the interplay of leave policies is important. As usual, the FMLA and ADA play the leading role here. Under both, there is a distinction between an employee’s ongoing substance use (not protected) and seeking treatment for that use (protected).
Under the FMLA, the employee has to be in treatment or scheduled to start treatment for such time to qualify as FMLA covered leave. The addiction to be treated must constitute a serious health condition. The employee has to be referred for rehabilitation by a health care provider and the rehabilitation needs to be provided by a health care provider or by a provider of health care services, as those terms are defined by the FMLA.
The ADA provides that a person who has successfully completed a supervised drug or alcohol rehabilitation program or is participating in a supervised rehabilitation program and who is no longer engaging in substance use may be deemed a qualified individual with a disability.
Employers may also want to evaluate their zero tolerance policies related to drug tests and drug and alcohol related conduct. Rather than require dismissal for a failed drug test or inappropriate behavior linked to OUD/SUD, a revised policy could refer the employee for treatment.
Any crisis requires a response plan to overcome and move beyond it. The opioid crisis is no different and, like most other issues, is best addressed through education and the consistent implementation of appropriate policies and procedures.
The recent decision in Dyer v. Ventra Sandusky, LLC, issued by the U.S. Sixth Circuit Court of Appeals (which has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee), should motivate employers to take another look at whether their attendance policies run afoul of the Family and Medical Leave Act (FMLA).
There are plenty of gray areas in the law, but it is generally clear that employees are not to be disciplined because they are absent for FMLA-covered reasons. That also means that employees should not accumulate attendance “points,” e.g., under a no-fault attendance policy, for FMLA-covered absences when such points can contribute to discipline up to and including termination of employment.
To its credit, the employer in Dyer did not assign attendance points for FMLA-covered absences. But unfortunately for the employer, that is not the end of the story.
Under the employer’s attendance policy, employees were eligible for a one-point “reduction” of their attendance point balance for every 30-day period in which the employee had “perfect attendance.” The employer’s definition of perfect attendance was not self-explanatory. For instance, an employee could be absent for several different reasons — including vacation, bereavement, jury duty, military duty, holidays, and union leave — and still have “perfect attendance” and eligibility for attendance point reductions.
However, FMLA-covered absences were not included among the types of absences that preserved perfect attendance status and point-reduction eligibility. And if an employee had a FMLA-covered absence, his progress toward the 30-day point reduction goal was reset to zero.
The Sixth Circuit noted that the FMLA’s regulations generally require that an employee not lose benefits while on FMLA leave. Because attendance point reductions (and progress toward such reductions) are benefits, the Sixth Circuit noted that, at the very least, progress toward the 30-day goal should be frozen while employees are on FMLA leave, rather than being reset to zero. The court also indicated that if other “equivalent,” but non-FMLA forms of leave were counted toward the 30-day goal, then FMLA-covered absences should also be counted toward the 30-day goal.
The bottom line is that the Dyer decision instructs employers that disciplinary and benefit policies must be closely scrutinized to determine whether they might dissuade employees from taking FMLA leave — or otherwise harm employees who take FMLA leave. If harm results, or if employees are faced with the decision of taking FMLA leave or forgoing benefits, potential exposure to liability under the FMLA may exist.
employees are more likely to die from an opioid overdose than a car crash. It’s
a recently published statistic, and a startling one to come to terms with.
According to the National Safety Council, your chances of dying in a car crash
are 1 in 103, while your chances of dying from an opioid overdose are 1 in 96.
These numbers only account for opioid use and do not include the use of other
It is simply
unrealistic to believe your workforce is exempt from the current crisis. While
a certain level of empathy may be appropriate, employers that are too lenient
and forgiving learn quickly (and often painfully) that no good deed goes
Dobbs Bush and Deborah Krukowski on Wednesday,
April 17 at 12:00 PM CT for the latest installment of our Labor &
Employment Quarterly Series. They will discuss the ways opioids can impact
employers, as well as proactive ways employers can approach the opioid crisis
in the workforce. Specific topics covered include:
tailor your policies to address the epidemic
How to spot
and manage suspected drug use in the workplace
manage the recruiting process for best efforts in maintaining a drug free
Who should attend? HR professionals, managers, and business owners
flu virus circulates all year round, although according to the Centers for
Disease Control and Prevention (CDC), flu activity historically peaks in
February. Here are a couple of flu-related questions frequently asked by
Is an employee entitled to FMLA for absences due to the flu?
The Family Medical Leave Act (FMLA) provides covered employees up to 12 weeks
of unpaid leave during a 12 month period if the employee has a “serious health
condition that makes the employee unable to perform” his or her job. A
serious health condition is an illness that involves either inpatient care
or continuing treatment by a health care provider. Inpatient care
is typically an overnight stay in a health care facility. Continuing
treatment is more complex but is generally a period of incapacity of more than
three consecutive full calendar days and any subsequent treatment or period of
incapacity that also involves either (1) treatment or consultation with a
health care provider two or more times within 30 days of the initial
incapacitation or (2) treatment or consultation with a health care
provider at least once and a regimen of continuing treatment under the
supervision of the healthcare provider. A “regimen of continuing treatment”
includes prescription medication, even without a follow-up medical appointment.
29 C.F.R. § 825.115. Over the counter medications (aspirin, flu
medicine), bed rest and fluids or other treatment that may be initiated without
the direction of a health care provider, do not qualify as a “regimen of
So, while an employee with a typical case of the flu who recovers with only self-care generally does not qualify for FMLA leave, extenuating circumstances can trigger coverage. It is important to focus not on the name of the illness—flu—but rather on the facts of the particular situation to determine whether an illness is a “serious health condition” as defined by the FMLA. When an employee calls in sick with the flu and is absent more than three consecutive days, the cautious approach is to send the employee an FMLA medical certification form. It is risky to deny FMLA leave without first taking steps to determine whether the absence qualifies for FMLA protection. If the employee returns the completed medical certification, the employer can then assess whether the condition is a “serious health condition.” (Note: Even if FMLA does not apply, an employee may be entitled to leave under state or local sick leave laws, or the employer’s sick leave or paid time off policies. Depending on the circumstance, an employer may also need to examine whether the Americans with Disabilities Act, as amended (ADA), applies.)
Can an employee who is exhibiting flu symptoms at work be
Yes, an employee who is exhibiting flu-like symptoms at work (e.g., fever, excessive coughing, vomiting, chills, etc.) can be sent home (or instructed not to come to work). Employers have the right to manage their workforce. This includes excluding potentially infectious employees, even if they want to work. Preventing the spread of contagious illness is a legitimate concern for employers. Employers can send sick employees home in an effort to maintain a safe and healthy workplace. (Note: OSHA requires all employers to maintain a safe and healthy workplace.)
Employers should, however, be consistent and fair in how they handle each situation. This is important for employee morale and to avoid legal claims (e.g., allegations of discrimination). Adopting an infectious disease policy will give employees and managers guidance on how to handle these situations.
We previously reported that in 2018, the U.S. Department of Labor (DOL) began issuing opinion letters again after nearly a decade of silence. While the legislature makes laws, the consequences of presidential elections flow into the executive agencies charged with administering and enforcing the laws.
As of the close of 2018, the DOL had issued more than 30 new opinion letters involving the Family and Medical Leave Act (FMLA) or Fair Labor Standards Act (FLSA), and those letters addressed a variety of topics including minimum wage and overtime for employees paid varying rates, the compensability of frequent rest breaks required as a reasonable accommodation for a disability, and travel time. The DOL’s opinion letters represent the agency’s official interpretation of how it would enforce the statutes under its jurisdiction. Employers, especially those operating close to the margins of the law, should pay careful attention to these opinions and adjust their practices accordingly.
Companies with questions or
concerns relating to FMLA and FLSA practices may
also wish to seek their own opinions letters—which may be submitted
anonymously, through counsel—for clarity regarding complicated compliance matters. Additionally, given the substantial risks and
liabilities that may arise from medical
leave and wage & hour administration,
companies should also err on the side of
caution by seeking
the advice of knowledgeable employment counsel, and
regularly undertaking audits of FMLA and
FLSA-related policies and practices.
In September 2018, the U.S. DOL published “updated” FMLA forms and the U.S. Consumer Financial Protection Bureau published updated FCRA forms.
DOL – Family and Medical Leave Act Forms
The DOL’s September 4, 2018 update is trivial: only the expiration date changed (now extended to August 31, 2021). There are no other changes to information, questions, or even layout (indeed, they maintain their prior revision date). Nonetheless, employers should promptly update their files with these new template forms.
On September 12, 2018, the CFPB released an updated Fair Credit Reporting Act Notice. This is an important document to be provided to employees when using a third-party provider to obtain a “consumer report,” such as criminal background check or financial history inquiry.
Enforced by the U.S. EEOC in the employment context, failure to strictly comply with the FCRA has resulted in a significant increase in employment class action and discrimination lawsuits, including by professional plaintiffs — those who never really intended to work for the company, but found an opportunity to make a few dollars from a noncompliant company through threatening litigation and obtaining a nice settlement.
As part of the company’s regulatory compliance, ensure that the company and any third-party vendor immediately updates their FCRA notices, available from the CFPB in English and Spanish.
As always seek the advice of competent employment counsel if there are any concerns with the use, completion, or interpretation of any of these government documents.
Constantly evolving employment risk, often brought on by a change of administration (federal or state), is one of the most difficult aspects of running a successful business. Overnight, a lawful employment practice might be interpreted as unlawful, necessitating change to avoid charges of discrimination, unfair labor practice charges, agency scrutiny, and other issues related to running the business.
FMLA, family medical leave act
Agency opinion letters – guidance on how an agency interprets a fact-specific situation under the laws it enforces – are one useful tool to stay abreast of these developments. On August 28, 2018, the U.S. DOL issued FMLA opinion letters FMLA2018-1-A and FMLA2018-2-A. The last FMLA opinion letter was issued in January 2009.
FMLA2018-1-A – Organ Donor Leave
In FMLA2018-1-A, the DOL opined that an otherwise healthy employee that chooses to donate an organ may be entitled to FMLA leave because the resulting recovery generally is a serious health condition requiring one (or more) night’s stay in the hospital. As a result, an employee’s organ donation may be protected by both state and federal mandated leave laws, requiring case-by-case analysis.
FMLA2018-2-A – Application of Points Systems to Employees on FMLA Leave
FMLA2018-2-A is likely to impact many more employers. Here, the DOL issued guidance on the appropriateness of a no-fault attendance policy that have features that suspend attendance point accumulation and also suspend attendance point dissipation during a period of FMLA leave. The DOL found such policies do not violate the FMLA, if applied in a nondiscriminatory manner. Point reduction is a reward for working, and thus a benefit to which an employee on FMLA leave might not be entitled – as long as employees on other types of leave are treated the same.
FMLA2018-2-A is significant. Under such a policy, an employee who has accumulated attendance points and is getting close to disciplinary action (or termination) cannot “game the system” by taking FMLA leave, because the employee’s point total will remain frozen (and not automatically reduced by operation of time) during the period of the leave, up to 12 weeks.
Policies must be applied in a nondiscriminatory fashion – including treating employees on FMLA in the same fashion as employees on other types of leave. For example, if there would be no “freeze” of the points policy for an employee taking a 2-week vacation or intermittent personal days, then an employee taking a 2-week FMLA leave or using intermittent FMLA should be treated the same.
Experienced counsel should review attendance and leave policies in conjunction with other conduct policies to ensure a cohesive and comprehensive scheme.
Similarly, careful analysis of the specific facts of a particular issue may help avoid legal complications down the road.