More Families First Guidance Emerges – Including The Small Business Exemption

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While the world was still discussing Friday’s passage of the landmark stimulus CARES Act, the Department of Labor issued additional guidance regarding the Families First Coronavirus Response Act.

Remember, the Response Act requires many employers to provide emergency paid sick leave and expanded family and medical leave for specific reasons related to COVID-19.  The April 1, 2020 effective date is looming, so if you have fewer than 500 employees, be sure to get those posters up.  Why?  Who will see your bulletin boards these days?  The DOL thought of that – if your employees are teleworking, that means you should email, direct mail, post on your Company’s intranet or put those posters up on your website.

As you may have noticed, the Response Act contained some exemptions, including one for small businesses and others designed to ensure that the employers of Health Care Workers and First Responders are not short-staffed during the pandemic, as a result of the new emergency paid leave requirements.

Small Business Exemption An employer with fewer than 50 employees may qualify from an exemption from providing (a) paid sick leave due to school or daycare closures for COVID-19 related reasons and (b) expanded family and medical leave due to school or daycare closures for COVID-19 related reasons, when doing so would jeopardize the viability of the small business as a going concern.

What does that mean?  An officer or director will need to gather documentation that:

  1. paying the leave would result in the expenses of the small business exceeding revenues and cause the business to cease operating at a “minimal capacity;”
  2. the absence of the employee(s) requesting paid leave would entail a substantial risk to the financial health or operational capabilities, due to their specialized skills, knowledge or responsibilities; or
  3. there are not sufficient workers able, willing and qualified to perform the services provided by the employee(s) requesting the paid leave and their services are necessary for the small business to operate at a minimal capacity.

OK, so what does that mean?  A small employer (less than 50 employees) who meets one of these criteria will not need to grant the paid leave when it is requested for reasons related to the closure of a child’s school or where the child’s care provider is unavailable due to COVID-19 related reasons. Small employers will not be exempt from the obligation to pay emergency sick leave for the other qualifying reasons, related to COVID-19, which include:

  • federal, state or local quarantine or isolation order;
  • the employee has been advised by a healthcare provider to self-quarantine;
  • the employee is experiencing symptoms and is seeking a medical diagnosis
  • the employee is caring for an individual subject to a governmental quarantine or isolation order and is seeking a diagnosis;
  • the employee is caring for an individual subject to a governmental quarantine or isolation order or in self-quarantine; or
  • the employee is experiencing “any other substantially similar condition.”

Health Care Provider Exemption.  The DOL explained that employees who may be exempted from paid sick leave or expanded family and medical leave under the Response Act include those employees of any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy or any similar institution, employer or entity.  That exemption extends to any temporary employees, independent contractors or anyone employed by any entity that provides medical services, produces medical products or is otherwise involved in the making of COVID-19 related equipment, tests, drugs, vaccines, diagnostics or treatments.

Emergency Responder Exemption Employees may be excluded if they are necessary for the provision of transport, care, healthcare comfort and nutrition of COVID-19 patients, including military, national guard, law enforcement, correctional institution personnel, firefighters, EMS personnel, physicians, nurses, public health personnel, EMTs, paramedics, 911 operators, public works personnel and others with specialized skills.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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