Part 2: The Small Business Exemption And Other Key Takeaways For Employers From Updated Guidance On The Families First Coronavirus Response Act

Authors:

lauren r. darden

Lauren R. Darden

Partner

540.438.5377
ldarden@wawlaw.com

ashley waterbury

Ashley H. Waterbury

Associate

540.438.5332
awaterbury@wawlaw.com

On March 28, 2020, the Department of Labor (“DOL”) published further guidance on certain provisions of the paid sick leave and expanded FMLA provisions of the Families First Coronavirus Response Act (“FFCRA”), which goes into effect on April 1, 2020. Wharton Aldhizer & Weaver’s prior blog posts on the FFCRA and earlier DOL guidance may be found at our Resources Tab.

Under the FFCRA, employers with fewer than 50 employees may be exempt from the requirements to provide paid sick leave and expanded FMLA leave to employees requesting leave because a child’s school or place of care is closed, or child care provider is unavailable due to COVID-19, if to do so would jeopardize the viability of the business as a going concern. Please note that an employer with fewer than 50 employees may not claim the small business exemption for paid sick leave obligations if the employee has a qualifying reason other than childcare or school closings.

Questions 58 and 59 of this new guidance further define how employers are to qualify for the small business exemption.

An authorized officer of the business with fewer than 50 employees must make one of the following determinations:

  1. The provision of paid sick leave or expanded FMLA leave would result in the business’s expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded FMLA 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 FMLA leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Other key topics addressed in the March 28 guidance include:

  • Job restoration requirements for those employees who take paid sick leave or expanded FMLA leave (Question 43);
  • The interplay between standard FMLA leave and expanded FMLA leave (Questions 44 and 45);
  • The definition of “health care provider” for purposes of those whose advice to quarantine may be relied upon as a basis for a qualifying reason for paid sick leave (Question 55); and
  • The definitions of “health care provider” and “emergency responder” for purposes of those who may be excluded by their employer from paid sick leave and/or expanded FMLA leave (Questions 56 and 57)

In addition to this March 28, 2020 guidance, the Department of Labor published temporary regulations on the paid sick leave and expanded FMLA provisions of the FFCRA on April 1, 2020 and these regulations are available at:
https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf

Please be advised there are provisions of the FFCRA and DOL guidance that are not covered in this post, and that above examples are not specific to every employer’s situation. Attorneys at Wharton, Aldhizer & Weaver are available to assist with compliance and to answer any questions on these matters.