U.S. Department of Labor Provides Guidance on the Families First Coronavirus Response Act

Employers both public and private with fewer than 500 workers are looking toward the upcoming flu season, as well as the start of the school year, with an all-important question on their collective minds: How will my business be affected by the Families First Coronavirus Response Act?

The U.S. Department of Labor’s Wage and Hour Division is working with companies to help them understand this important legislation. Everyone is on the same page in terms of working with employers as to who is covered and how to use the Act, said Mildred S. Kress, Community Outreach and Resource Planning Specialist for the DOL.

The Families First Coronavirus Response Act, also known as FFCRA, requires employers to provide workers with paid sick leave or expanded family and medical leave for specified reasons related to coronavirus, Kress explained.

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For example, the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees, Kress said.

“Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA,” Kress said. “However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.”

Kress added that small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Act explained
On April 1, the U.S. Department of Labor announced how American workers and employers benefit from the protections and relief offered by the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the FFCRA.

“Pursuant to our website, the FFCRA helps the United States combat the workplace effects of COVID-19 by reimbursing American private employers that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19,” Kress said.

In this way, Kress said, the law enables employers to keep their workers on their payrolls, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus.

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For example, if an employee got coronavirus and needed time off to recover, an employer could apply for coverage under the FFCRA – his or her employer could then receive the tax credits while the employee recovers. When he or she is completely past the virus, the worker knows he or she could return to work thanks to the Act’s protections.

The Department’s Wage and Hour Division administers the paid leave portions of the FFCRA. The leave provisions are created by a time-limited statutory authority established under the FFCRA and are set to expire Dec. 31, 2020.

How to use the Act
Kress said the DOL is happy to work with employers who have questions. The DOL via its website offered some questions and answers for companies who wanted to learn more. Here is a sampling of those:

Q: As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?

A: You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any state, the District of Columbia or any territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted toward the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of paid sick leave under the Emergency Paid Sick Leave Act and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

Q: If I am a private sector employer and have 500 or more employees, do the Acts apply to me?

A: No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.

Q: When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

A: 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.

Q: If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A: A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
a. employer employs fewer than 50 employees;
b. leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons; and
c. an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.
The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.

The FFCRA’s paid leave requirements:
• Provides direction for administration of the Emergency Paid Sick Leave Act (EPSLA), which requires that certain employers provide up to 80 hours of paid sick leave to employees who need to take leave from work for certain specified reasons related to COVID-19. These reasons may include the following:
• The employee or someone the employee is caring for is subject to a government quarantine order or has been advised by a health care provider to self-quarantine;
• The employee is experiencing COVID-19 symptoms and is seeking medical attention; or,
• The employee is caring for his or her son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.
• Provides direction for the effective administration of the Emergency Family and Medical Leave Expansion Act (EFMLEA), which requires that certain employers provide up to 10 weeks of paid, and 2 weeks unpaid, emergency family and medical leave to eligible employees if the employee is caring for his or her son or daughter whose school or place of care is closed or whose child care provider is unavailable for reasons related to COVID-19.