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U.S. Department of Labor Further Expands FFCRA Guidance and Clarifies Small Business Exemption

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On March 28, 2020, the U.S. Department of Labor (DOL) provided additional guidance as to the Families First Coronavirus Response Act (FFCRA). This can be found on the DOL website at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

The latest round of guidance from the DOL includes questions and answers addressing critical issues, such as the definition of a "health care provider" and "emergency responder" for purposes of exclusion from the provisions of the FFCRA, as well as whether public sector employees may take paid family and medical leave. It also identifies limitations to the number of weeks of leave an employee can take under the Family and Medical Leave Act (FMLA), by considering any prior leave by the employee within a 12-month period under that statute.  The guidance also explains: the interplay between regular FMLA time off and COVID Emergency FMLA; employees’ remedies under the law; counting employees; and the definitions of “son” or “daughter.” Employers are well-advised to read the new guidance, which appears as questions and answers 38-57 in the above-linked guidance.

In addition, in questions and answers 58 and 59, the DOL provides the following important guidance about the scope of the small business exemption for purposes of exclusion 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.

Of note, the small business exception does not provide an employer with an exemption from those sections of the Emergency Paid Sick Leave Act applicable when due to COVID-19 an employee is: subject to a quarantine order by a federal, state or local authority; in self-quarantine due to a doctor's order; expressing such symptoms; or caring for someone who is quarantined.

The DOL "encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety."

If you have questions regarding the interpretation of or compliance with the FFCRA, or other applicable federal and state employment laws, please do not hesitate to contact us.

Written by Michael A. Shadiack and Scott P. Humphreys.

  • Michael A. Shadiack
    Partner

    Michael Shadiack is the Chair of Connell Foley’s Labor and Employment Practice Group. Representing a broad spectrum of employers and management personnel in the private and public sectors, he provides litigation defense and ...

  • Marianne C. Tolomeo
    Partner

    Marianne Tolomeo, a partner in Connell Foley’s Labor and Employment Group, practices primarily in the areas of employment law and commercial litigation.

    For more than two decades, Marianne has represented clients ranging from ...

  • Scott P. Humphreys
    Associate

    Scott Humphreys is a litigation associate practicing in the areas of labor and employment, and environmental law. Prior to joining Connell Foley, Scott was a law clerk to the Hon. Sallyanne Floria, A.J.S.C. of the Superior Court of ...

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