Effective April 1, 2020, the Families First Coronavirus Response Act (FFCRA) will require private employers to provide emergency paid sick leave (EPSL) and expanded Family and Medical Leave Act (FMLA) coverage to their employees.
On March 26, 2020, the United States Department of Labor issued wide-reaching new guidance to assist employers seeking to comply with the FFCRA.
Highlights of the new guidance include:
Probably No EPSL During Shelter-in-Place and Business Closure Orders
- Since the enactment of the FFCRA many employers have questioned whether a “shelter-in-place” or other similar order entitles an employee to receive EPSL if their workplace is required to shut down completely pursuant to one of these orders.
- Unfortunately, the new DOL guidance does not address this question directly. But the guidance strongly suggests that a shelter in place order would not trigger an employer’s obligation to pay EPSL:
If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?
No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. (Emphasis added). See: Q&A, Number 27.
Employees Must Support Requests for Leave – and Employers Must Maintain Records
- The DOL recommends that employers obtain and keep documentation from employees supporting leave requests, such as written documentation from a health provider advising self-quarantine, or notices posted by schools or government agencies indicating a school shut down.
- The new guidance advises employers to keep this documentation if they intend to seek tax credits for providing paid leave. Employers are directed to consult with the IRS for forms, instructions and procedures that must be followed to obtain the tax credit. See: Q&A, Number 15.
Small Business Exemption – No Details Yet
- The FFCRA provides that an exemption for employers with fewer than 50 employees will be available.
- The DOL recommends that employers who intend to seek this exemption: “should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.” See: Q&A, Number 4.
We will continue to keep you updated as the COVID epidemic continues.