On March 18, President Donald Trump signed into law the Families First Coronavirus Response Act (FFCRA), which among other things, requires certain employers to provide up to two weeks of emergency paid sick leave and up to 12 weeks of family and medical leave. The U.S. Department of Labor is currently preparing guidance regarding the application of the FFCRA, but for now, there are numerous ambiguities in it that have caused considerable uncertainty for public employers.
Application to “Public Agencies”
One topic on which we have received questions is whether the FFCRA applies to public employers. The bottom line is “yes” regardless of the number of individuals they employ.
The FFCRA defines “covered employer” to include “any ‘public agency’, as defined in section 3(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(x)).” The Fair Labor Standards Act (FLSA) defines a public agency as “the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Regulatory Commission, a State, or a political subdivision of a State; or any interstate government agency.” The Labor Department has previously clarified that the FLSA definition of “public agency” includes fire protection and law enforcement activities.
Based on the broad definition of “public agency” under the FLSA , the FFCRA’s leave provisions will apply to all federal, state, and local employers, including state and local law enforcement and fire departments.
The “Emergency Responder” Exception
The FFCRA includes references to potential exceptions for “emergency responders.” First, with respect to the expansion of leave under the Family and Medical Leave Act (FMLA), the FFCRA provides that the Labor Department has authority to issue regulations “to exclude certain health care providers and emergency responders from the definition of eligible employee[.]” Also with respect to FMLA expansion leave, the FFCRA provides that “[a]n employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of [FMLA expansion leave].”
Second, with respect to emergency paid sick leave, the FFCRA likewise 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.” Again, the FFCRA also empowers the DOL to issue regulations “to exclude certain health care providers and emergency responders from the definition of employee … including by allowing the employer of such health care providers and emergency responders to opt out.”
The statute does not define the term “emergency responder.” In a virtual town hall held on March 20, the Labor Department indicated that it would be issuing emergency guidance concerning the FFCRA that will likely provide more clarity on this issue. While we must wait for this final guidance to understand the scope of the definition of “emergency responder,” public employers in traditional “first responder” roles, such as law enforcement, fire protection, and emergency medical services, may qualify for this exception.
You can find additional information about the requirements of the FFCRA here. You can find Parker Poe’s additional alerts related to COVID-19 here.