** Note the Healthcare Provider Exemption discussed in the article has now been amended and clients should read this September 22, 2020 article for the latest, revised information.

On March 24, 2020, the Department of Labor (“DOL”) issued FAQs providing guidance on the Paid Sick Leave and Emergency FMLA Leave provided by the Families First Coronavirus Response Act (“FFCRA”). Since then, additional FAQs have been published by the DOL further addressing questions regarding the Paid Sick Leave and Emergency FMLA Leave. The following provides an overview of especially pertinent points in the DOL’s latest guidance. As a reminder, the Paid Sick Leave and Emergency FMLA Leave becomes effective tomorrow, April 1, 2020.

Documenting Leave

A question we have received repeatedly is what type of documentation do employees have to provide in order to utilize the Paid Sick Leave and Emergency FMLA Leave. We now know that employers that provide Paid Sick Leave and Emergency FMLA Leave required by the FFCRA are eligible for reimbursement of the costs of that leave through payroll tax credits. In order for employers to claim such tax credits, the employer must retain appropriate documentation evidencing employees’ utilization of Paid Sick Leave and Emergency FMLA Leave.

According to the DOL and IRS, appropriate documentation should include: the employee’s name, the qualifying reason for requesting leave, a statement that the employee is unable to work (including telework) due to the qualifying reason, and the date(s) for which leave is requested. Employees should also provide their employers with documentation supporting the need for leave. Such documentation may include a copy of the Federal, State or local COVID-19 quarantine or isolation order, written documentation from a health care provider advising self-quarantine, or an email, website announcement, or other published notice of closure or unavailability from an employee’s child’s school or child care provider.

It is critical that employers retain this documentation. Employers who grant Paid Sick Leave or Emergency FMLA Leave without obtaining or keeping such documentation may not be eligible for payroll tax credits.

Intermittent Leave

The new DOL guidance discusses an employee’s use of Paid Sick Leave and Emergency FMLA Leave on an intermittent basis – a topic left unaddressed in the actual text of the FFCRA. The DOL’s Q&A clarifies that employers are not required to provide intermittent leave under the FFCRA. Rather, the employer and employee may decide to agree on such an arrangement.

Interestingly, the DOL has made a distinction between employees teleworking and employees continuing to work at their usual worksite for purposes of an employee’s ability to take Paid Sick Leave or Emergency FMLA Leave on an intermittent basis.

If an employee is teleworking, an employee may take Paid Sick Leave and Emergency FMLA Leave if the employee and employer agree on such an arrangement.

However, things are a bit trickier for an employee wanting to take intermittent leave if the employee is not teleworking, but still working at their usual worksite. In such a case case, whether intermittent leave is allowed depends on if the employee is requesting Paid Sick Leave or Emergency FMLA Leave. 

• Paid Sick Leave – Employees Working at Their Usual Worksite
  • In the case of Paid Sick leave, the DOL states that whether an employee can take leave on an intermittent basis depends on the reason the employee is taking such leave, and whether the employer agrees to the intermittent arrangement. If the employee is taking Paid Sick Leave for any qualifying reason except to care for the employee’s child whose school or place of care is closed, or whose child care provider is unavailable because of COVID-19 related reasons, the leave cannot be taken intermittently. Rather, the employee must continue to take leave each day until the employee either (1) uses the full amount of paid sick leave allowed, or (2) no longer has a qualifying reason for taking paid sick leave. However, this does not prevent an employee from taking Paid Sick Leave for one qualifying reason, remaining on continuous leave until that qualifying reason no longer exists, returning to work, and later taking Paid Sick Leave for a different qualifying reason.  For example, an employee could take 40 hours of Paid Sick Leave due to the fact that they were caring for a family member who is self-quarantining, return to work thereafter, and later on use their remaining 40 hours of Paid Sick Leave because they are subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  • In contrast, if an employee and employer agree, an employee may take Paid Sick Leave intermittently if the employee is taking Paid Sick Leave to care for the employee’s child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if an employee’s child is at home because his or her school or place of care is closed, an employee may take Paid Sick Leave on Mondays, Wednesdays, and Fridays to care for the employee’s child and work at the employee’s usual worksite on Tuesdays and Thursdays.
• Emergency FMLA Leave – Employees Working at their Usual Worksite
  • In the case of Emergency FMLA Leave, an employee is allowed to take intermittent leave as long as the employer and employee agree on such an arrangement.

Health Care Provider Exemption

The FFCRA contains an elective exemption from the Paid Sick Leave and Emergency FMLA Leave for employers of health care providers and emergency responders. Specifically, the FFCRA provides that “an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.” While the FFCRA itself references the more limited FMLA definition of “health care provider”[i]; the DOL has determined that, for purposes of employees who may be exempted from Paid Sick Leave or Emergency FMLA Leave, a health care provider is more broadly defined 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.” 

This definition also 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.

It should be noted that the definition of a “health care provider” is the more limited FMLA version (see Footnote 1 below) when used in the FFCRA to determine the individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave. In such case, “health care provider” means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.

Small Business Exemption

Both the Paid Sick Leave and Emergency FMLA Leave provisions in the FFCRA include an exemption for small businesses with fewer than 50 employees. While this exemption will likely provide much needed relief for many small businesses, it is important to understand that this is not a total exemption from providing all leave under the FFCRA.  Rather, a small business is only exempt from providing (1) Paid Sick Leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons, and (2) Emergency FMLA Leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. Small businesses may not claim an exemption from providing Paid Sick Leave in the event an employee is subject to a quarantine or isolation order, seeking medical attention in the event an employee (a) requests Paid Sick Leave because the employee is subject to a Federal, State, or local quarantine or isolation order, (b) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, (c) is experiencing symptoms of COVID-19 and seeking a medical diagnosis, or (d) is caring for a family member who is self-quarantining. In these four circumstances, a small business is still obligated to provide requested Paid Sick Leave to a covered employee.

• [i] A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or
• Any other person determined by the Secretary to be capable of providing health care services.

Others “capable of providing health care services” include only:

• Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;
• Nurse practitioners, nurse midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
• Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee or family member is receiving treatment from a Christian Science practitioner, an employee may not object to any requirement from an employer that the employee or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider other than a Christian Science practitioner except as otherwise provided under applicable State or local law or collective bargaining agreement.
• Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
• Health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law. The phrase “authorized to practice in the State” as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions.
  
  

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