Small business exemptions and more are subject of DOL’s newest regulation and guidance

The Families First Coronavirus Response Act, which was signed into law on March 18, 2020, provides paid emergency family leave and paid sick leave for people affected by COVID-19. These provisions take effect April 1, 2020 and expire on December 31, 2020.

The Department of Labor recently issued additional regulations and guidance regarding the Emergency Family and Medical Leave Expansion Act (EFMLEA) portion of the legislation.

Small Business Exemption

Employers with fewer than 50 employees may claim an exemption from paid leave taken for reasons of child care and school closures related to COVID-19 provisions of the FFCRA. An “authorized officer” of the employer may only claim this exemption if one of the following applies:

• Providing the leave would result in the small business’ expenses and financial obligations exceeding available business revenues and cause the employer to cease operating at a minimal capacity;
• The absence of the employee or employees requesting such leave would entail a substantial risk to the financial health or operational capabilities of the employer because of their specialized skills, knowledge of the business or responsibilities; or
• 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 the leave, and these labor or services are needed for the small business to operate at a minimal capacity.

These employers would not be exempt from providing paid sick time to an employee who:

• Is subject to a state, local or federal quarantine;
• Has been advised by a health care provider to self-quarantine;
• Is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• Is providing care for an individual subject to a federal, state or local quarantine or isolation; or
• Is dealing with a “substantially similar condition.”

Office Closures

If an employer closes a work-site prior to the Families First Coronavirus Response Act’s effective date of April 1 2020, then an employee can’t get paid sick leave or EFMLEA leave. This is true whether the employer closes the work-site for lack of business or because it is required to close pursuant to a federal, state or local directive.

Should the employer close the work-site on or after April 1, 2020 and before an individual takes leave, that person is not entitled to paid sick leave or EFMLEA leave. If an employer closes while someone is on paid sick leave or EFMLEA leave, it must pay for any paid sick leave or EFMLEA leave used before it closed, but no more. The worker may then be eligible for unemployment insurance benefits.

Intermittent Leave

An employee who is unable to telework during his or her normal work hours because a child’s school or child care provider is unavailable due to coronavirus-related reasons may have intermittent EFMLEA leave. Intermittent leave may be taken in any increment for EFMLEA leave, provided the employer and the employee agree. (i.e., if the employer and the employee agree, the worker may take EFMLEA leave on Mondays, Wednesdays and Fridays, but work Tuesdays and Thursdays.)

The DOL encourages flexibility in intermittent leave and said intermittent EFMLEA leave may be voluntarily made on a day-by-day basis.

Documentation

Documentation of EFMLEA leave may include a notice of closure or unavailability from a child’s school or child care provider. Similarly, under the FFCRA’s paid-sick-leave provisions, the employee must provide documentation supporting the reasons for the paid sick leave.
These documents include:

• A copy of the governmental quarantine order.
• Written documentation by a health care provider advising the individual to self-quarantine due to COVID-19 concerns.
  *U.S. Centers for Disease Control and Prevention discourages overburdening health care providers during the pandemic by asking them for doctors’ notes.

Furloughs or Reduced Hours

If an employer is open and furloughs a worker on or after April 1, 2020, the employee cannot receive paid sick leave or EFMLEA leave, but may be entitled to unemployment insurance. If an employer reduces an individual’s hours, the person is not entitled to paid sick leave or EFMLEA leave. An individual may take paid sick leave or EFMLEA leave if a coronavirus-qualifying reason prevents him or her from working a full schedule.

Visit the Department of Labor’s FFCRA Questions and Answers page or our Coronavirus Resources Page for additional information. KRS professionals are available and working remotely. Please contact us if you have any questions, concerns, or need advisement during this unprecedented time.