On April 1, 2020, the U.S. Department of Labor (“DOL”) issued regulations for the Families First Coronavirus Response Act (“FFCRA”), which went into effect the same day.  The regulations are available here.

The majority of the content in the regulations is not new and simply repeats information that is also available in the DOL’s FAQs guidance (which has been updated several times since it was first posted).  The DOL’s FAQs are here, and our blog post highlighting key takeaways from the FAQs as initially posted is here.

The latest information for employers from the regulations and the updated FAQs includes:

Clarification of small business exemption.

• Employers with fewer than 50 employees may assert they are exempt from providing emergency paid medical leave (“EPML”) or emergency paid sick leave (“EPSL”) to employees who miss work due to a school or childcare closure. (Note that there are numerous qualifying reasons to use EPSL, including when an employee has been advised to self-quarantine or is showing symptoms consistent with COVID-19 and seeking a medical diagnosis.  However, there is no exemption that will allow small employers to avoid providing EPSL altogether.)
• To deny an employee EPML or EPSL as outlined above, an “authorized officer” of the small employer must determine that:
  • providing such leave would cause the employer’s expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity;
  • the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of their specialized skills, knowledge of the business, or responsibilities; or
  • the employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services that the employee(s) requesting leave provide, and these labor or services are needed for the employer to operate at a minimal capacity.
• Small employers are not required to formally “apply” for the exemption; rather, they must “document the facts and circumstances . . . justify[ing] [the] denial” of leave. The small business exemption does not require prior approval from the DOL, and neither the FFCRA nor the regulations create an express right for employees to challenge the employer’s determination that it qualifies.  Thus, it would appear that small employers have a great deal of discretion to determine whether they qualify for the exemption.
• Small employers who assert the exemption must still post the FFCRA notice to employees.

Use of employer-provided paid time off during EPML.  After the first two workweeks of EPML, employers can require that employees take EPML concurrently with any employer-provided paid time off (such as vacation or personal leave) that would otherwise be available for employees to care for their children under the employer’s policies during their absence.  Employees can also elect to use employer-provided paid time off concurrently.  During the first two workweeks of EPML, employees may elect to use their employer-provided paid leave or EPSL, but the employer may not require them to do so.
Continue Reading Department of Labor Issues Regulations and Updates Guidance for Families First Coronavirus Response Act