Late yesterday afternoon, the Department of Labor’s Wage and Hour Division posted a temporary rule issuing regulations pursuant to the Families First Coronavirus Response Act (“FFCRA”). The temporary rule addresses critical issues, such as the definition of health care provider, guidance on when paid leave is required, which employees and employers are covered by the paid sick and expanded medical leave provisions, and how leave under the emergency family and medical leave provisions affects other types of leave an employee may take.
Importantly, the temporary rule address the requirements a small business with fewer than 50 employees must meet to be exempt from the emergency family and medical leave provisions and the use of paid sick leave to care for a child whose school or place of care is closed. To be eligible for the exemption, an authorized officer of the business must determine that:
- The leave requested under the expanded medical leave provisions or under the child care provision of the paid sick leave requirements 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;
- The absence of the employee requesting leave would entail a substantial risk to the financial health or operational capabilities of the 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 requesting leave and these labor or services are needed for the small business to operate at minimal capacity.
Any small business that intends to use this exemption must document its qualifications. The full text of the temporary rule is available here.
In addition to the temporary rule, the Department of Labor has issued a series of “Frequently Asked Questions” which provides additional guidance on interpreting the FFCRA. The Frequently Asked Questions page has been regularly updated as new issues arise. Wage and Hour Division Administrator Cheryl Stanton encouraged everyone to check the Wage and Hour Division website frequently as the Department continues to add guidance on the FFCRA.
Within the last week, the Department of Labor published a Field Assistance Bulletin that describes the Wage and Hour Division’s temporary policy of non-enforcement of the FFCRA through April 17, 2020. The Department of Labor also provided English and Spanish language versions of posters that comply with its FFCRA notice requirements, as well as fact sheets regarding paid leave rights and requirements, on its COVID-19 website.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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