By: Stephanie Boussias, Esq.

DISCLAIMER: Please take note that the FFCRA has recently been enacted (March 18, 2020) and there are still many questions remaining related to the interpretation of its provisions. Further, the Department of Labor is actively providing new guidance and explanations for enforcing the provisions of the FFCRA. This blog reflects our best effort to set forth frequently asked questions from our clients and an offering of our assessment thereof. We will provide updates as interpretation and practical use of the FFRCA unfolds. As this blog is meant to act only as a guide, you must still consult with your attorney prior to making any final decisions.

On March 18, 2020, the Family First Coronavirus Response Act (“FFCRA”) was signed into law. The same went into effect on April 1, 2020. The FFCRA is a relief package that offers paid leave benefits to employees, which in turn, has an impact on employers. The FFCRA is broken up into divisions; however, the most prevalent divisions for employers include the Emergency Family and Medical Leave Expansion Act (“Expanded FMLA”) and the Emergency Paid Sick Leave Act (“Paid Sick Leave Act”).

The Department of Labor (“DOL”) has issued guidance, which includes explanations as to whether employers with businesses that have fewer than 50 employees might be exempt from having to comply with the Paid Sick Leave Act and/or the Expanded FMLA.

In summary, the guidance indicates the following:

• Employers with fewer than 50 employees will be exempt from providing payment under Paid Sick Leave Act to employees who request leave payments because his or her child’s school or place of care is closed, or childcare provider is unavailable due to COVID-19 related reasons, if the employer can show that doing so would jeopardize the viability of the small business as a growing concern.
• Employers with fewer than 50 employees will be exempt from providing Expanded FMLA coverage if the employer can show that doing so would jeopardize the viability of the small business as a growing concern.
• To elect the small business exemption, you must maintain documents showing why your business meets the exemption criteria. The exemption criteria is listed below.

The DOL has provided an objective criteria for when a small business with fewer than 50 employees can deny an employee paid sick leave or expanded family and medical leave to care for the employee’s son or daughter whose school or place of care is closed, or childcare provider is unavailable, for Covid-19 related reasons. The criteria are as follows:

• Such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at minimal capacity;
• The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
• The small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

If an employer decides to deny paid sick leave or expanded family and medical leave to an employee whose child’s school or place of care is closed, or whose child care provider is unavailable, the employer must document the facts and circumstances that meet the criteria above to justify such denial. However, the guidance notes that the employer should not send such material or documentation to the DOL, but rather should retain such records for its own files.

The full link to the DOL’s guidance can be found HERE. Also, the DOL released concise and explanatory “Questions and Answers” regarding the FFCRA which can be found HERE.

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This Blog was written by Hunter Business Law Attorney Stephanie Boussias.

DISCLAIMER: This blog is for educational purposes only and does not offer nor substitute legal advice. Additionally, this blog does not establish an attorney-client relationship and is not for advertising or solicitation purposes. Any of the content contained herein shall not be used to make any decision without first consulting an attorney. The hiring of an attorney is an important decision not to be based on advertisements or blogs. Hunter Business Law expressly disclaims any and all liability in regard to any actions, or lack thereof, based on any contents of this blog.