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March 31, 2020
Update on Federal Paid Leave Benefits

In this rapidly changing environment, we continue to monitor action at the federal, state, and local levels. 

Below is an overview of updates from the U.S. Department of Labor (“DOL”) regarding implementation of the Families First Coronavirus Response Act (“FFCRA”), which requires some employers to provide paid sick leave and partially paid FMLA for certain COVID-19 reasons.  

Action Item: Distribute Poster

The DOL has clarified that the FFCRA takes effect on Wednesday, April 1. Before Wednesday, all employers with fewer than 500 employees must hang this poster with their wage-and-hour posters, typically in a breakroom or lunchroom. If employees are working from home, employers may meet the posting obligations by sending the poster to employees by e-mail or U.S. mail, or posting it on an internal or external company website. Here are the DOL’s answers to additional FAQs about the poster.

Update on FMLA Exemption for Small Businesses Experiencing Financial Hardship

The DOL also has released guidance on how small businesses can apply for a financial hardship exemption from the FFCRA’s requirements to provide paid sick leave and partially paid FMLA for employees who cannot work because of school or daycare closure or unavailability of their childcare provider. 

Which employers qualify?
Any employer (including non-profits and religious organizations) with 1-499 employees.

What “financial hardships” qualify for the exemption?
A small business may claim this exemption if an authorized officer of the business has determined that at least one of the three circumstances apply:

  1. Providing paid sick leave or expanded FMLA 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. Employees on leave and therefore absent from work would entail a substantial risk to the financial health or operational capabilities of the small business because the business needs 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 employees on leave, and these labor or services are needed for the business to operate at a minimal capacity.

Contact us if you believe your business qualifies for this exemption and would like more information about how to seek an exemption.

Additional Guidance from the DOL on the FFCRA

Over the weekend, the DOL updated its answers to FAQs. Here are some of the highlights of the new guidance:

  • It is likely that Governor Walz’s “stay at home” executive order does not qualify as an “isolation order” triggering an employee’s ability to take paid sick leave under the FFCRA. See Answers to Questions #23-27. 
  • Employees who are furloughed because there is not enough work during the COVID-19 pandemic are not eligible for FFCRA paid leave benefits. See Answer to Question #26. Furloughed employees may still be eligible for unemployment insurance benefits.  
  • Employees who use FMLA for COVID-19 school or daycare closure are not entitled to an additional 12 weeks of unpaid leave for non-COVID-19 reasons, beyond the standard FMLA. See Answer to Question #45.  (In other words, an employee who has already used some FMLA leave during the applicable 12-month period does not get an additional 12 weeks of leave under the FFCRA, but rather has only as many weeks of available COVID-19 FMLA leave as are left of their total 12-week allowance for the year.)
  • Employees who are working remotely may take any type of COVID-19 paid sick leave, intermittently, if their employer agrees.  See Answer to Question #20.  Importantly, though, if an employee is still working at his or her regular worksite, the employee may only take school closure/child care related COVID-19 sick leave intermittently (but may not take other types of COVID-19 related sick leave intermittently, because the other reasons for sick leave are intended to keep employees out of the workplace to prevent the spread of disease).  See Answer to Question #21. The Department encourages employers and employees to work together on arrangements around childcare to achieve flexibility.  
  • Any employee, whether working remotely or at their regular worksite, may take intermittent COVID-19 related FMLA leave (which is only available for school closure/child care related reasons), if their employer agrees. As with child-care related sick leave, the Department encourages employers and employees to work together on potential intermittent leave arrangements to achieve flexibility.  See Answer to Questions 20 and 22.

Please contact us with any questions about how to implement the DOL’s new guidance or any other COVID-19-related issues. 

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