By: T. Scott Gilligan, NFDA General Counsel

The Families First Coronavirus Response Act (FFCRA) took effect on April 1, 2020.  This law, which applies to employers with under 500 employees, requires the employer to provide a certain amount of mandatory paid leave to employees who cannot work because of COVID-19.  As NFDA reported in an article published in the April 2, 2020 Memorial Business Journal, there are three different situations where employers are required to pay mandatory sick leave for up to two weeks if an employee is unable to work because of COVID quarantine orders, or up to 12 weeks if the employee is taking care of a child because the child’s daycare or school was closed due to COVID-19.

One of the provisions of the FFCRA allows employers to exempt employees from the paid leave provisions if they are regarded as “emergency responders.”  If an employee qualifies as an emergency responder, an employer is not required to provide to that employee the paid sick leave benefits under the FFCRA.  The rationale of the exemption was that Congress did not want to lose the services of emergency responders.

In the initial information published by the Department of Labor (DOL), funeral directors were not included in the list of workers that the DOL identified as emergency responders.  Although the DOL indicated that the list was not meant to be exclusive, without funeral directors being included in the list, NFDA could not definitively state that funeral directors qualified as emergency responders under the FFCRA.

NFDA immediately reached out to DOL officials to inquire whether funeral directors qualified as emergency responders.  During the three week period that we had discussions back and forth with the Department, the DOL issued its regulations under the FFCRA.  While the regulations do not specifically address funeral directors, it makes it fairly clear that funeral directors would qualify as emergency responders.

29 CFR § 826.30(c)(2) of the DOL regulation indicates that an  “emergency responder” includes “persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency.”  In its commentary to the regulation, the DOL explained that the list of workers it initially identified as emergency responders was not fully inclusive and that the DOL will look to the needs of the community in deciding who is an emergency responder.  Also, the DOL indicated it would defer to classifications made by state governors in their emergency orders.  Therefore, to the extent that state officials identified funeral directors as essential workers, the DOL would not contest that classification.

In discussions with DOL officials, they explained, as the official commentary does, that the DOL intends to define the term “emergency responder” broadly.  If the worker is providing essential services to keep Americans safe, they would qualify as an emergency responder.  Moreover, any employee in the business whose work is necessary to maintain the operation of those employees considered to be emergency responders is also covered by the exemption.  Therefore, to the extent funeral directors are emergency responders, the support staff of the funeral home that are necessary to maintain the operation of the funeral home would also be covered by the emergency responder exemption.

DOL officials consulting with NFDA explained that at this junctive the regulations would not be modified to include funeral directors as emergency responders.  But, they clearly indicated that it would be difficult for the DOL to challenge the conclusion that a funeral director is an emergency responder.  Given that the official guidance issued by the Department of Homeland Security and stay-at-home orders issued by state governors have identified funeral directors as essential employees, DOL officials stated that funeral directors certainly appear to fit the definition of an emergency responder.

In summary, while the DOL regulations under the FFCRA do not expressly include a funeral director as an emergency responder, it appears that the DOL will not challenge that conclusion.  Therefore, funeral homes may treat funeral directors and essential support staff at the funeral home as emergency responders who are exempt from the paid leave provisions of the FFCRA. 

NFDA members with questions regarding this matter may contact General Counsel Scott Gilligan at 513-871-6632 or scott@gilliganlegal.com.