The U.S. Department of Labor (DOL) has provided additional guidance for paid sick and family medical leave provisions required by the Families First Coronavirus Response Act (FFCRA). New federal leave requirements for COVID-19 apply to all businesses, religious organizations, and nonprofits with fewer than 500 employees (including both full- and part-time workers) and go into effect on Wednesday, April 1, 2020. The new requirements are not retroactive. The DOL has published a list of frequently asked questions on new paid sick and family leave requirements under the FFCRA, available here. NEFI urges you to consult a qualified attorney regarding these new laws and the implications for your business.
Employees Must Be Notified by April 1, 2020
A notice for employees (available in English and Spanish) must be posted in a conspicuous place before this date. Remote workers may be notified by email or postal mail, or by posting the notice on an internal or external website. A list of frequently asked questions on notice requirements can be found here.
Hardship Exemption for Smaller Businesses
Businesses, religious organizations, and nonprofits may claim an exemption if the new leave requirements "jeopardize the viability of the small business as a going concern." According to the DOL, this means the entity:
- Employs fewer than 50 individuals;
- Has been asked for the leave because a child's school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons; and
- An authorized officer of the business has determined that at least one of the following three conditions has been satisfied:
- The provision of paid sick leave or expanded family and medical leave would cause the small business's expenses and financial obligations to exceed available revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee(s) requesting the 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
- 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(s) requesting the leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Based on the DOL guidance, it appears businesses with fewer than 50 employees may only receive an exemption from sick and family medical leave under the FFCRA due to a pandemic-related school or childcare closure. This means the employer may still be subject to other leave requirements under the new law, including when an employee is unable to work because the employee (or a dependent) has contracted COVID-19, or is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
Additional Guidance Expected
The DOL is expected to provide additional guidance in the days and weeks ahead. We encourage NEFI members and supporters to frequently check the DOL website for updated guidance on coronavirus-related workplace obligations. Note as well that Congress and the president have enacted new legislation to provide tax relief for businesses that will help offset the cost of paid sick and family medical leave requirements. Again, NEFI urges you to consult a qualified tax or legal professional regarding these new laws and their implications for your business.