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Department of Labor Issues Additional Guidance to Assist Employer and Employee Compliance Under the Families First Coronavirus Response Act

April 17, 2020

Cleveland, Ohio

In an effort to assist employers and employees as they navigate a new terrain in the American workplace, the Department of Labor issued an updated Q&A concerning responsibilities and rights under the Families First Coronavirus Response Act (“Act”). 
 
The Act’s paid leave provisions went into effect April 1, 2020 and requires employers with fewer than 500 employees to provide two weeks of paid sick leave for employees who are quarantined or seeking a medical diagnosis due to COVID-19 symptoms and/or taking care of individuals/children for reasons related to COVID-19. The Act also provides two weeks of unpaid and 10 weeks of paid expanded family and medical leave for employees caring for children due to school or childcare provider closures.
Small businesses concerned with how the childcare-related paid sick leave and expanded family and medical leave will jeopardize the viability of their business may be able to take advantage of the small business exemption. Small businesses, including religious and nonprofit organizations, with fewer than 50 employees, may be exempt from the paid sick leave and expanded family and medical leave if the leave requirements would jeopardize the viability of a business as an ongoing concern.
 
Which small businesses qualify for the small business exemption?
 
1. Businesses with fewer than 50 employees including religious and nonprofit organizations; and
2. An authorized officer of the business has determined that at least one of the three conditions is satisfied:
  • 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; or
  • 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
  • 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
3. Leave is requested because the child’s school or place of care is closed, or childcare provider is unavailable due to COVID-19 related reasons; or
4. Leave is requested because employee is unable to work due to: 
  • Isolation order related to COVID-19;
  • Advisement by health care provider to self-quarantine; 
  • Experiencing COVID-19 symptoms and is seeking a medical diagnosis; 
  • Caring for an individual subject to isolation order related to COVID-19 or advisement by health care provider to self-quarantine
 What information must be documented by small businesses?
1. Regardless of whether a small business grants or denies a request for paid sick leave or expanded medical leave, small businesses must document the following:
  • The name of the employee requesting leave;
  • The date(s) for which leave is requested;
  • The reason for leave; and
  • A statement from the employee that he or she is unable to work because of the reason
2. Small businesses may request that the employee provide the following information that must be documented upon an employee’s request for leave to care for their child whose school or place of care is closed, or childcare is unavailable:
  • The name of the child being cared for;
  • The name of the school, place of care, or childcare provider that has closed or become unavailable; and
  • A statement from the employee that no other suitable person is available to care for the child
 
The Department of Labor encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety. 

LNA members are not affiliated in the joint practice of law; each member firm is an independent law firm and renders professional services on an individual and separate basis.