On March 28, 2020, the DOL updated its “Question and Answers” page for the Families First Coronavirus Response Act (“FFCRA”), providing additional guidance on a number of topics relating to employer and employee responsibilities and rights under the Act.  The FFCRA is the emergency legislation requiring employers with less than 500 employees to provide paid short- and long-term leave for certain reasons relating to the COVID-19 pandemic.  The updated Q&A page is more extensive than previously issued guidance, and employers are encouraged to carefully review the updated information.

Among the topics the Q&A page now addressees is the exemption for small businesses with 50 or fewer employees.  Employers of this size may seek an exemption from the DOL, which, if approved, excuses that employer from the FFCRA’s requirement to provide paid sick leave for employees who need time off to care for a child whose school or child care provider has temporarily closed due to COVID-19.  For the exemption to apply, an authorized officer of the business must determine that:

1. The leave would result in the business’s expenses and financial obligations to exceed revenues and cause the business to cease operating at minimal capacity;
2. The absence of the employee(s) would be a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge, or responsibilities; OR
3. Sufficient workers to perform the labor or services provided by the employee requesting leave, which are needed for the small business to operate at a minimal capacity, are not available.

The new guidance also clarifies the term “health care provider,” as used in various sections of the FFCRA.  This is important as the advice of a health care provider is necessary for triggering some permissible uses of paid sick leave, and “health care providers” may be exempt from leave requirements because of their central role in fighting the pandemic.

Again, given the breadth of topics, employers should carefully review the DOL’s guidance as they work to implement the FFCRA.  SHLC attorneys are available to answer any questions clients of the firm may have about the latest DOL guidance.

As the FFCRA also provides for refundable tax credits to reimburse costs for providing paid leave, we recommend employers consult with a qualified tax CPA as well on that issue.  You can also find information for other COVID-19 employment issues at the SHLC Coronavirus Pandemic Employer Resources page, at https://suttonhague.com/coronavirus/.  We also have downloadable webinars on this and related topics at our Calnevalaw.com website.