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As originally published by Axley Attorneys

Attention PIAW Members:

The Families First Coronavirus Response Act, which becomes effective April 1, 2020, requires covered employers to provide employees with paid sick leave (Emergency Paid Sick Leave Act) and expanded family and medical leave (Emergency Family and Medical Leave Expansion Act) for specified reasons related to the COVID-19 pandemic. The provisions of the FFCRA apply through December 31, 2020.

The Department of Labor, Wage and Hour Division, administers and enforces the new law’s leave requirements. The Department has issued the following resources for employers to assist with compliance with the FFCRA.

  • Fact Sheet for Employees;
  • Fact Sheet for Employers;
  • A required poster (one for all other employees) and Questions and Answers about posting requirements;
  • A comprehensive guidance with Questions and Answers; and
  • Field Assistance Bulletin describing WHD’s 30-day non-enforcement policy.
  • These resources are frequently updated and are available at the Department of Labor’s COVID-19 website.

The new leave laws generally apply to private sector employers with fewer than 500 employees but also include a limited exemption from certain provisions of the leave law for small businesses with fewer than 50 employees. More specifically, an employer with fewer than 50 employees 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.

Important: Please note that the remainder of the Emergency Paid Sick Leave Act provisions providing leave for other COVID-19 related reasons apply even if a business otherwise meets the requirements satisfying the small employer exemption.

Covered employers must take the following Action Steps effective April 1, 2020:

  • Post the Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under the Families First Coronavirus Response Act poster.
  • Provide eligible employees with paid sick leave under the Emergency Paid Sick Leave Act for COVID-19 related reasons as set forth in the Act (and family and medical leave under the Emergency Family and Medical Leave Expansion Act, if not otherwise exempt).
  • Document why any business with fewer than 50 employees meets the criteria for a small business exemption from providing child-care related paid sick leave and expanded family and medical leave.

The Department will not bring enforcement actions against any employer for violations of the FFCRA occurring within 30 days of the enactment, i.e., through April 17, 2020, if the employer has made reasonable, good faith efforts to comply with the Act, promptly remedies any non-willful violation, and commits, in writing, to future compliance.

For more information:

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