Can Your Employees be Excluded from Federal Coronavirus Leave Laws as Emergency Responders?
By Jennifer Smith, SledgeLaw, LLC
Since the Families First Coronavirus Response Act (the “FFCRA” or the “Act”) was signed into law on March 18, 2020, employers have struggled to interpret the new paid leave rights afforded by the FFCRA, which include (1) emergency paid sick leave for certain absences related to COVID-19 and (2) partially paid family and medical leave for employees unable to work due to school closures, daycare closures, or unavailable paid childcare as a result of COVID-19. Numerous resources exist to aid employers in the proper understanding and implementation of the FFCRA, several of which are included as links at the end of this article.
For members of the TWCA that operate in the public works arena, the permissible exclusion of “emergency responders” from the new leave provisions of the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”) is of particular importance.1 The Department of Labor’s (“DOL”) recently issued rules implementing the FFCRA expand on the provisions of the Act that authorize private and public employers to exclude employees who are emergency responders from the EPSLA and the EFMLEA’s leave requirements. Under Section 826.30(c)(2) of the rules, an emergency responder is defined as “anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such [COVID-19] patients, or others needed for the response to COVID-19.” The rule enumerates several categories of employees that are considered to meet this definition, including “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.” Although the rules do not define “public works personnel,” the preamble to the rules provides some insight into the DOL’s intentions, which can assist employers in the decision whether or not to exclude certain employees from the new leave laws as emergency responders.
The preamble indicates that the authority for employers to exclude emergency responders from the leave provisions reflects the FFCRA’s attempt to balance the needs of employees, employers, and the public, and encourages employers to read the Act with this balance in mind. The FFCRA helps to prevent employees from being forced to choose between a paycheck and protecting themselves against COVID–19; however, providing paid sick leave or expanded family and medical leave should not jeopardize the necessary functions of society or the public’s safety and access to essential services. For this reason, the DOL interprets “emergency responder” broadly to include, among other categories of employees, those who provide “essential services relevant to the American people’s health and wellbeing.” At the same time, in order to minimize the spread of COVID-19, the Department encourages employers to be judicious in the application of this exclusion.
In determining whether to exclude an employee from the leave requirements of the EPSLA or the EFMLEA as an emergency responder, an employer should also consider the following:
An employer’s exercise of this option does not impact an employee’s earned or accrued sick, personal, vacation, or other employer-provided leave under the employer’s established policies.
An employer’s exercise of this option does not authorize an employer to prevent an employee who is an emergency responder from taking earned or accrued leave in accordance with established employer policies.
Because an employer is not required to exercise this option, if an employer does not elect to exclude an otherwise-eligible emergency responder from taking paid leave under the EPSLA or the EFMLEA, such leave is subject to all other requirements of those laws and should be treated in the same manner for purposes of the tax credit created by the FFCRA.
The long-term implications of the FFCRA remains to be seen, and the issuance of additional regulations from the DOL is possible. Employers should seek legal counsel regarding the application of the FFCRA to your particular situation.
A Note Regarding Tax Credits Employers should be aware of specific requirements in Section 826.100 of the DOL rules regarding documentation required of employees who request leave under the EPSLA or EFMLEA. Such documentation is required to be retained under Section 826.140 of the rules to support an employer’s claim for tax credits from the Internal Revenue Service (IRS). Governmental entities are not eligible to receive the tax credit.
1 The FFCRA also provides a permissible exclusion for health care providers, which is not addressed in this article.