DOL Temporary Regulations for FFCRA

The U.S. Department of Labor (DOL) has issued temporary regulations under the Families First Coronavirus Response Act (FFCRA). The FFCRA created new employer requirements to provide paid sick leave and partially compensated,  expanded FMLA leave for reasons related to the COVID-19 pandemic. The regulations include important clarifications to the law and earlier DOL guidance on the FFCRA that will help employers understand their obligations under these new paid leave mandates. The regulations expand on features of the law such as:

• The small business exemption;
• The implications of teleworking;
• Employee leave rights when caring for someone else; and
• The effect of existing paid leave policies and Family and Medical Leave Act (FMLA) leave on the new leave mandates.

The regulations also include definitions that were not in the FFCRA statute itself, such as the definition of “subject to a quarantine or isolation order,”  “telework” and an “individual” who needs care. The regulations also provide detail on when an employee may take intermittent leave and documentation required of employees and employers under the FFCRA.

HIGHLIGHTS

The DOL has issued regulations under the FFCRA’s paid leave provisions.

• The regulations expand on issues such as the small business exemption, teleworking and leave entitlements when caring for another person.
• Documentation required of employers and employees is also explained in the regulations.

Covered Employees The expanded FMLA requirements under the FFCRA apply to private employers with fewer than 500 employees, and some government employers. In general, nonfederal public agencies are covered by the expanded FMLA leave requirements, but most federal government agencies are not. The FFCRA paid sick leave requirements to apply to all private employers with fewer than 500 employees and all government employers. However, the law allows a small business exemption from both leave mandates to certain businesses with fewer than 50  employees, if the leave would jeopardize the viability of the business. Both leave requirements also allow employers to exempt employees who are health care providers or first responders.

Counting Employees To determine whether they have fewer than 500 employees, according to the regulations, employers should count all full-time and part-time employees in the United States (including any U.S. territory or possession) at the time an employee  would take leave, including:

• Current employees;
• Employees on leave of any kind;
• Employees of temporary placement agencies who are jointly employed under the FLSA;
• Day laborers supplied by a temporary placement agency; and
• Common employees of joint or integrated employers.

Part-time employees are counted as full-time employees for this purpose. The Fair Labor Standards Act test for joint employers applies, as does the FMLA test for integrated employers. Employers should not count independent contractors or employees who were laid off or furloughed and not rehired.

Small Business Exemption Employers with fewer than 50 employees may be eligible for an exemption from the FFCRA’s expanded FMLA leave requirements and childcare-related paid sick leave requirements if the leave would jeopardize the viability of the business. Consistent with DOL guidance on the issue, the regulations allow for this exemption when the requirements would jeopardize the viability of the business as a going concern. Specifically, businesses with fewer than 50 employees are entitled to the exemption if an authorized officer of the business has determined that:

• The leave would result in the business’s expenses and financial obligations exceeding available business revenues, and cause the small business to cease operating at a minimal capacity;
• The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
• 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 leave, and the labor or services are needed for the small business to operate at a minimal capacity.

An employer electing this exemption must document that a determination has been made according to the above criteria and retain the records in its files.