As mentioned in our previous alert, the recently enacted Families First Coronavirus Response Act (FFCRA) requires that employers with fewer than 500 employees provide paid Emergency Sick Leave and paid Emergency Family Medical Leave to employees who cannot work due to the COVID-19 pandemic.
The Department of Labor has now issued several rounds of guidance regarding the FFCRA. Among a number of helpful clarifications, the DOL published the notice document employers must post in the workplace and explained how small businesses may qualify for the small business exemption.
Workplace Notice Requirement
By Wednesday April 1, when the FFCRA takes effect, all covered employers must post a notice in a conspicuous location in the workplace advising employees of the law’s paid leave benefits. Because many employees are currently working from home, an employer may satisfy this requirement by mailing or emailing the notice directly to employees or by posting it on the employer’s intranet website.
We recommend that employers both post the notice in a visible location on the premises (if any employees remain working on site) and email a copy to each employee to ensure all workers are made aware of their entitlement to leave under the new law.
A copy of the FFCRA workplace notice is provided below:
Technical Clarifications
Employees who are unable to work because they are home with a child because the child’s school or daycare is closed may be eligible for both paid sick leave and expanded family and medical leave, but the total leave entitlement remains 12 weeks.
Employees furloughed or laid off, or whose worksite closes before or after April 1 when the FFCRA takes effect, are not eligible for leave benefits, but may still be eligible for unemployment insurance benefits.
An employer may allow an employee to take the expanded family and medical leave intermittently but is not required to do so.
Small Business Exemption
The paid leave provisions of the FFCRA apply to all employers with fewer than 500 employees. However, small businesses (fewer than 50 employees) are exempt from providing paid sick leave or expanded family and medical leave to an employee who cannot work due to a COVID-19 related childcare issue when doing so would jeopardize the viability of the business. In its new guidance, the DOL set forth specific tests for determining jeopardy to business viability, focusing on conditions where the leave would cause a small business to experience substantial risk or be unable to operate at a minimal capacity.
Notably, the small business exemption only applies where employees are requesting leave due to a school closure or unavailability of a childcare provider. A small employer still must provide FFCRA paid sick leave to employees who cannot work because they are experiencing COVID-19 related symptoms and seeking a diagnosis, under quarantine, or are caring for a family member under quarantine.
