DOL Issues Final Rule Implementing Employer Obligations Under New Family Leave Law

The U.S. Department of Labor today issued a new regulation, effective immediately, implementing the paid leave provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA).

FFCRA helps the U.S. combat the workplace effects of COVID-19 by reimbursing American private employers that have fewer than 500 employees with dollar-for-dollar tax credits for the cost of providing employees with two weeks paid sick leave for specified reasons related to COVID-19 and up to 10 weeks paid family medical leave to care for a child whose school or daycare is closed as a result of the pandemic.

The law enables employers to keep their workers on their payrolls, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus. WHD administers the paid leave portions of the FFCRA.

The rule also implements guidance previously posted by WHD outlining the limited instances in which businesses with fewer than 50 employees can qualify for an exemption from providing leave. A small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the leave is requested because a child’s school is closed or a daycare provider is unavailable due to COVID-19 related reasons; and if an authorized officer of the business has determined that the employee provides an essential and irreplaceable function to the business that would hurt its operability.

The three criteria used to make that determination include:

• Such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
• The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
• The small 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 the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

Employers are not required to apply for an exemption – rather, they are instructed to maintain detailed documentation of the facts and circumstances that meet the criteria outlined by the Labor Department's Wage and Hour Division (WHD) and retain that documentation in the event of an enforcement action.

The WHD will post a recorded webinar on Friday, April 3, 2020, to provide interested parties a more in-depth description and help them learn more about the FFCRA. The IRS has also issued guidance on the tax credits employers may claim under the FFCRA.

Employers are encouraged to visit www.dol.gov/agencies/whd/pandemic for resources outlining the FFCRA’s benefits and requirements. AFact Sheet for Employees and a Fact Sheet for Employers, available in both English and Spanish, and an expansive list of Questions and Answers are among the tools provided by the Department of Labor.