More DOL Guidance for Employers Regarding FFCRA Paid Leave Benefits for COVID-19

As described in Hoge Fenton’s recent article and webinar, Congress has created two new forms of paid leave benefits that will go into effect on April 1, 2020 for employees who need time off for qualifying reasons due to COVID-19. The U.S. Department of Labor has now issued its third round of guidance on the new law, including the much-anticipated small employer exemption (see the question and answer below):

When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined 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.

The FAQ also provides additional guidance regarding:

• Exemptions for healthcare providers and emergency responders
• Definitions, including “employee,” “son or daughter,” and “health care provider” for purposes of determining individuals whose advice to self-quarantine can be relied upon for paid sick leave
• Confirming that the employee count for purposes of determining employer eligibility is determined on the day the employee’s leave would start
• Confirming that expanded FMLA leave does not entitle an employee to take more than 12 workweeks of FMLA leave within a 12-month period
• Reinstatement rights
• Rights of public sector employees
• Documentation employers should maintain to see FFCRA refundable tax credits
• Advice to employees regarding enforcement measures

For additional legal information regarding COVID-19, please visit our COVID-19 Resources website .

Hoge Fenton’s Employment Law team is here to provide you with additional support throughout the COVID-19 pandemic. Please feel free to contact any of us below.

Sarju Naran Chair & Shareholder +1.408.947.2456 email here	Jenn Protas Shareholder +1.408.947.2435 email here	Ashlee Cherry Attorney +1.408.947.2457 email here

This information is provided as an educational service by Hoge Fenton for clients and friends of the firm. This communique is an overview only, and should not be construed as legal advice or advice to take any specific action. Please be sure to consult a knowledgeable professional with assistance with your particular legal issue. © 2020 Hoge Fenton