The DOL Has Answered Key Questions Concerning the Emergency Paid Sick Leave and Family and Medical Leave Acts

COVID-19 thermometer

The United States Department of Labor has expanded its Questions and Answers concerning the paid sick leave and expanded family and medical leave requirements under the recently enacted Families First Coronavirus Response Act (FFCRA), which becomes effective on April 1, 2020. You can read our prior posts about the new law here and here. The DOL’s Question and Answers provide key information for employers in navigating the requirements to provide emergency paid sick leave and expanded family and medical leave.

Small Business Exemption

Of particular importance to small businesses, the Questions and Answers explain when the small business exemption to the FFCRA leave requirements applies. For the small business exemption to apply, a business must have less than 50 employees and the provision of paid leave “would jeopardize the viability of the small business as a going concern.” To claim the exemption, the Question and Answers explain that an authorized officer of the business must determine that:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  

2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or 

3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

(Question and Answer #58.)

Any small business that claims the exemption would be well advised to seek legal advice before doing so and document the basis of the decision at the time it is made.

Documentation Supporting the Use of Paid Leave

The Questions and Answers confirm that employers may require documentation supporting employee requests for FFCRA paid sick or expanded family and medical leave. This documentation could include documentation from a medical provider or notice from the government, school, or day care provider concerning the closure of the school or day care.

Calculation of Leave for Part-Time Employees

Under the law, part-time employees are entitled to leave based upon their average normally scheduled hours in a two-week period. If a part-time employee’s average hours vary, employers should use a six-month average to calculate the employee’s average daily hours.

Closure of Business

If a business closes before the April 1, 2020 effective date of the FFCRA, it is not required to provide paid sick or expanded family and medical leave. Similarly, if a business closes after the effective date of the FFCRA, it will not be required to provide paid sick or expanded family and medical leave after the date of the closure.

The FFCRA has greatly expanded employee eligibility for protected and paid leave and business owners should work with their legal counsel to ensure that they grant leave to employees as required by the FFCRA and other applicable state employee leave laws.

If you have questions about your business’s handling of coronavirus related employment or business issues, please contact us at (201) 345-5412 / (646) 503-5358 or through our online scheduling system.