Greetings and welcome to installment # 6B of our series.  Please read the rest of the series on the blog here.  Don’t forget the resources page here updated as of 3/25/20.

This is our third FFCRA post.  The U.S. Department of Labor has published a webpage to help employers with the Families First Coronavirus Response Act, or FFCRA.  It’s here.

The DOL has been adding to its FAQs on the implementation of the FFCRA, which takes effect on 4/1/2020.  If you’ve read the previous posts and FAQ’s, the new ones are 38-59 if my math is right.  Here are the highlights:

• Length of Service. Otherwise covered employees must be employed by covered employers 30 days for the childcare leave under FF-FMLA, but any employee is eligible for the paid sick leave. Q 38.
• Reinstatement Rights. Reinstatement rights are similar to under FMLA.  In the context of COVID-19, “shelter in place” or state closing orders (and faltering businesses), employees are not entitled to reinstatement if their jobs are eliminated. – Q 43.  NB – Employers voluntarily undertaking layoffs must be careful regarding selection of whom to layoff, as in any other circumstances, to avoid discrimination claims or claims of interference with leave rights.
• Total leave – The amount of FF-FMLA is reduced by how much “regular” FMLA the employee may have taken during the applicable measuring period – in the before time.  That is, if an employee took 10 weeks of leave for baby bonding during the 12 months preceding a leave request under FF-FMLA, the maximum FF-FMLA available is 2 weeks.  However, paid sick leave is available regardless of how much previous FMLA the employee took.  Q 44.
• Federal Sick Leave Is Extra Time – The 80 hours maximum of federal sick leave is always on top of any other sick leave the employee may be entitled to under law, collective bargaining agreement, or policy. Q 46.
• Public Sector Employee Leave Rights – See QQ 52 and 53.
• “Health Care Providers” Exempt from Leave – The DOL defines “health care providers” exempt from the leave entitlement (at the employer’s option) different from the way it defines “health care providers” who can provide medical certification. Health Care Providers potentially exempt from leave is very broad and includes just about anyone employed in a health care-related setting.  Q 56.
• Small Business Exemption:  The DOL explains the elements of the small business exemption from certain leave requirements (Q 58) as follows:An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
  1. 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;
  2. 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
  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 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. 

Note that this FAQ set is not a formal regulation (particularly regarding the small business exemption). But it likely previews the DOL’s formal regulations on the matter.

Note also that the “small business” exception does not eliminate the obligation to provide all paid sick leave. It applies only to the paid sick leave for “school or place of care closures or child care provider unavailability for COVID-19 related reasons.”  For more detail on the FFCRA Paid Sick Leave obligations, please read the other FAQs and our post here.