The U.S. Department of Labor recently issued a new rule to provide guidance regarding the Families First Coronavirus Relief Act (“FFCRA”) and the paid sick leave and family leave provided as part of this new legislation. The following are the three most significant takeaways for employers:
1. Small businesses are potentially exempt.
Notably, employers with less than 50 employees are potentially exempt from providing paid sick or family leave under the FFCRA if the employer can establish that one of three factors exist: (1) providing the leave would increase expenses and financial obligations exceeding available business revenue and that the employer would cease operating at a minimal capacity; or (2) the worker’s absence would pose a substantial risk to the employer’s finances or operations due to the employee’s knowledge of the business, skills or responsibilities; or (3) the employer cannot locate enough available and qualified workers to perform the work of the employee requesting the leave. The DOL guidance requires that a corporate officer must document the justification for the denial of the leave and retain this record in its own files.
2. Employees are not entitled to leave if the employer has no work.
The DOL rule clarifies that an employee is only entitled to emergency paid sick leave when subject to a Federal, State or local quarantine or isolation order that causes the employee to be unable to work despite the fact that an employer has work for the employee. Importantly, the guidance clarifies that an employee is not entitled to the leave when the employer does not have work for the employee as a result of the order or other circumstances. The DOL rule explains that this is because the employee would be unable to work even if not subject to the quarantine or isolation order. Therefore, employees whose employers have suspended operations or closed are not eligible for sick leave. The DOL provided an example of a coffee shop that closed temporarily or permanently as a result of a decrease in business related to the pandemic. The DOL explained that an employee sheltering-in-place as a result of a quarantine or isolation order is not entitled to sick leave under the FFCRA because the employee’s inability to work is not caused by compliance with the shelter-in-place order, but rather is caused by the fact that the employer has no work because it closed. The DOL clarified that this is the case even if the business closure is directly caused by a shelter-in-place order. Notably, this DOL rule means that employers who have temporarily or permanently closed their business due to COVID-19 will not be required to pay sick leave under the FFCRA.
3. Intermittent Leave by Agreement.
The DOL rule requires employees who request sick leave or family leave under the FFCRA intermittently to come to an agreement with their employer. Without an agreement between the employer and employee regarding intermittent leave and the time increments in which the leave will be taken, the leave granted by the FFCRA may not be taken intermittently. Moreover, for employees who work onsite for an employer, those employees are not allowed to take intermittent sick leave if the leave is due to a Federal, State or local quarantine or isolation order related to COVID-19; if a medical care provider has advised the employee to isolate due to COVID-19; if the employee is requesting the leave to obtain a medical diagnosis due to COVID-19 symptoms; if the employee is caring for persons who are subject to a quarantine or isolation order due to COVID-19; or if an employee has a substantially similar condition delineated by the Secretary of Health and Human Services. In contrast, employees who are able to telework can take intermittent sick leave or family leave.
If you have any questions regarding the DOL Guidance on the FFCRA, please contact Wiedner & McAuliffe Ltd.’s labor and employment group leaders: J. Jason Coggins (firstname.lastname@example.org) or Darcy L. Proctor (email@example.com).
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