Congress enacted the Families First Coronavirus Response Act (the “Act”) to protect employees who are unable to work because of school closures, stay-at-home orders, or exposure to COVID-19. The sick leave benefits and expanded FMLA benefits offer salary continuation to certain employees of businesses that have 500 employees or less.
The sick leave provisions of the Act provide two weeks of full pay if an employee misses work because of a government order, because of exposure to COVID-19, or because of being diagnosed with COVID-19, or two weeks at two-thirds pay to care for an immediate family member who needs care because of a COVID-19 diagnosis, a government order, or a school or childcare closure.
The expanded FMLA benefits provide two-thirds pay for up to 12 weeks (including the 2 weeks of sick leave provided under the Act) for parents who are required to miss work to care for a son or daughter because of school or childcare closures.
However, not every business with 500 or less employees needs to comply with the Act. Healthcare employers are exempt from needing to provide these benefits. Small businesses with less than 50 employees can deny employees the benefits under the Act if granting such leave would jeopardize the viability of the business in the long-term. Although the application of the exemption has been unclear, the U.S. Department of Labor has issued some guidelines.
The Department’s guidance allows for small employers to claim an exemption when: (i) such leave would cause the small employer's expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; (ii) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or (iii) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity. The employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity.
If your business is denying COVID sick leave or expanded FMLA, the Department requires that you document the facts and circumstances that meet the exemptions provided in (i) through (iii) above. You do not need to turn anything into the Department but you may need to justify the refusal if a claim is filed in the future.
Before you make a blanket decision about paying sick leave or expanded FMLA benefits, make sure you have made a sound analysis of whether your business meets the criteria set forth by the Department of Labor. Just as importantly, clearly document the basis for every denial of benefits under the Act.
If you have questions about your obligations under the FFCRA, please reach out to our employment and business attorneys today.