From April 1, 2020 through December 31, 2020, the Families First Coronavirus Response Act (“FFCRA”) mandates that certain covered employers provide all employees with:
- Two weeks (up to 80 hours) of paid sick leave for employees unable to work due to a quarantine under federal, state, local government order or the recommendation of a healthcare provider, and/or has COVID-19 symptoms and is seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave for employees unable to work due to the need to care for someone who is quarantined under federal, state, local government order or the advice of a healthcare provider or the need to provide care for a minor child (under 18 years of age) due to the closure or unavailability of school or child care provider due to COVID-19 at two-thirds the employee’s regular rate of pay.
- In addition covered employers are also required to pay employees of at least 30 days: Up to an additional 10 weeks of paid family and medical leave due to an employee’s inability to work where they need to care for a child due to the closure of unavailability of child care as a result of COVID-19.
Employers are prohibited from discharging, disciplining or otherwise discriminating against an employee for taking sick leave under the FFCRA or takes legal action under the FFCRA.
WHAT ARE THE EXEMPTIONS FOR SMALL BUSINESSES UNDER THE FAMILY FIRST CORONAVIRUS RESPONSE ACT
The Family First Coronavirus Response Act (“FFCRA”) provided for the Department of Labor to create rules to exempt employers with less than 50 employees (“Small Businesses”) where compliance would threaten “the viability of the employer’s business as a going concern.”
The DOL has provided guidance that businesses would be exempt from the mandatory paid sick leave or expanded family and medical leave mandated by the FFCRA if.
The DOL has clarified in its guidance that businesses (including religious and non-profit organizations) are exempt from mandated paid sick leave or expanded family and medical leave requirements only if:
- they employ less than 50 people,
- the requested leave is due to the closure of a child’s school or child care or a child care provider is not available due to COVID-19, and
- an officer for the business determines that at least one of the following conditions is met:
- Providing paid sick leave or expanded family and medical leave would cause the business’s expenses and financial obligations to exceed revenues cause the business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would create 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 insufficient workers available 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.
It is important to note that the small business exemption is only related to requests for leave that are related to school closures or the unavailability of childcare and does not apply to other requests for paid leave provided for under FFCRA.