Local governments and agencies in the Commonwealth of Virginia have unique considerations under the new Families First Coronavirus Response Act (H.R. 6201) (FFCRA). Under this legislation, it is important for public employers to understand how to administer the two new laws established by the FFCRA and how it intersects with the Code of Virginia.  The FAQs below highlight what local governments and agencies should know as they implement these new benefits for their employees. 

Do these new laws apply to local governments?

Yes. Both the EFMLEA and EPSLA apply to all governmental entities, including cities, counties, towns, school divisions and other public entity employers, regardless of the number of employees.

Do they apply to employees of Virginia local Constitutional Officers (i.e., Treasurers, Commissioners of Revenue, Commonwealth’s Attorneys, Sheriffs, Circuit Court Clerks)?

Yes.  Like the local government jurisdictions in which Constitutional Officers are elected to provide their services, the “Offices” of local Constitutional Officers in Virginia are employers covered by the FMLA by virtue of their status as “public agencies”. Notably, the FFCRA adopts the same definition of “employee” as the FMLA and Fair Labor Standards Act, which exempts elected officials themselves, as well as their personal staff, appointed policymakers, and immediate advisers.  See 29 C.F.R. § 825.102 (Definition of “employee” (adopting 29 U.S.C. § 203(e)(2)(c) (FLSA definition of “employee”)).[1]

Is there any reimbursement to government entities for the costs of these benefits?

No.  While the FFCRA provides tax credits to covered private employers to offset the cost of providing the paid leave made available under the Act, no such credits are available to government employers for whom the paid leave requirements are an unfunded mandate. See FFCRA § 7001(e)(4).

Are any of my public employees exempt from these laws?

Yes. A public employer may exclude “health care providers” and ” emergency responders” from the provisions of the EFMLEA and the EPSLA. Whereas the FMLA has rather narrow definitions of “health care providers” and “emergency responders,” the federal government is expanding these definitions under the FFCRA, as discussed below.  See 29 C.F.R. § 826.30(c) (Employee eligibility for leave.)

Who qualifies as a “health care provider” who may be exempted from paid sick leave and/or expanded FMLA leave?

A health care provider is anyone employed at any public or private medical facility, including: a “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 broadly includes, as well, individuals employed by an entity that contracts with any of the kinds of institutions/entities listed above “to provide services or to maintain the operation of the facility” and 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.”

Note, too, that employees may also be considered “health care providers” if the Governor determines that the individual is a healthcare provider for COVID-19 response purposes.[2]

Who qualifies as an “emergency responder” who may be exempted from paid sick leave and/or expanded FMLA leave?

USDOL guidance provides that – for purposes of application of the FFCRA employer-optional exemption only – an “emergency responder” is one who is required to provide “transport, care, health care, comfort, and nutrition” for patients, or “whose services are otherwise needed to limit the spread of COVID-19”.  This includes, for example, law enforcement officers, jail and prison personnel, fire fighters, emergency medical services personnel, physicians, nurses, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and “persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency”, among others. This has potential to greatly impact the law enforcement, emergency medical technician, public health, and social services departments of localities.

Note too that employees may also be considered “emergency responders” if the Governor determines that the individual is an emergency responder for COVID-19 response purposes.[3]

How long must an employee be employed by a local government to be eligible for paid leave under the EPSLA?

All employees—regardless of the employee’s tenure or FTE status with a local government—are entitled to emergency paid sick leave under the EPSLA.

Can I temporarily modify my public employee’s duties or other terms and conditions of their employment?

Generally, yes, but the public employee’s classification under the Fair Labor Standards Act and due process rights must be considered. When modifying duties, it is important to keep in mind the employee’s primary duties. Assigning temporary or emergency non-exempt duties to an exempt employee (e.g., having a manager also process mail during this pandemic) will not defeat the salary exemption so long as the employee’s primary duties remain exempt. It is a good idea to make clear when assigning any such “all hands-on deck” emergency duties that they are temporary and do not modify the employee’s primary duties.  In addition, because public employees in Virginia who are not on probationary status typically have a property right in their employment, care must be taken to ensure that any potentially adverse changes to the employee’s duties or terms and conditions of employment do not violate the employee’s rights. 

[1] See 29 C.F.R. § 552.11 for further guidance on how certain employees of elected officials are exempt under the FLSA and FMLA.  Attention should be paid as well to whether a local government has extended coverage of the locality’s personnel system to the employees of constitutional officers when determining the eligibility of employees for paid family and sick leave under the FFCRA.

[2] USDOL guidance emphasizes that exemption decisions apply on a case-by-case basis, and urges employers to be “judicious” (careful, prudent) in applying the exemption, with a view toward not requiring an employee to work who is not truly essential to managing the health care side of the emergency response.

[3] USDOL guidance emphasizes that exemption decisions apply on a case-by-case basis, and urges employers to be “judicious” (careful, prudent) in applying the exemption, with a view toward not requiring an employee to work who is not truly essential to managing the health care side of the emergency response.