Starting on Wednesday, April 1, 2020, all private employers (and certain public employers) with less than 500 employees, need to be ready to comply with the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Hopkins & Carley has been reporting on both Acts since their enactment and tracking recent developments that will affect your workplace. Below are some further updates that will assist you in preparing for the April 1 effective date.

Posting Requirements: Private employers with less than 500 employees must post this Notice at the company’s physical worksite where notices to employees are customarily posted and where it will be easily visible. This requirement applies even to small businesses with less than 50 employees. The U.S. Department of Labor’s FAQs section advises employers to post the Notice in breakrooms and in each building where an employee directly reports to work, and emailing, mailing, or posting it on an internal or external company website for employees that are teleworking.

New Guidance: As of March 28, 2019, the DOL has issued 59 Questions and Answers to help employers comply with Emergency Paid Sick Leave and Emergency FMLA. Here are a few of the key answers:

  • Furloughs: An employee who is on furlough because the employer does not have enough work or business for the employee is not entitled to take paid sick leave or expanded family and medical leave for that reason. The employee may be eligible for unemployment insurance benefits, however.

  • Worksite Closure: Employees are not entitled to paid sick leave or expanded family and medical leave because the employers’ worksite is closed. This is true whether the Company closes the worksite for lack of business as a result of COVID-19 or because it was required to close pursuant to a Federal, State, or local directive related to COVID-19 or any other reason. 

  • Tax Credits: The tax credit available to employers for providing Emergency Paid Sick Leave and Emergency FMLA Leave applies to a leave taken between April 1, 2020, and December 31, 2020, provided that the leave meets one of the 6 qualifying reasons, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. Employers are not entitled to a tax credit for any leave that is not required to be paid or exceeds the limits set forth under the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

  • Small Business Exemption for Paid Sick Leave and Expanded FMLA: The small businesses (less than 50 employees) exemption can apply in only one circumstance: where the employee is unable to work because the employee is caring for a child of such employee if the school or place of care has been closed, or the child care provider of such is unavailable, due to COVID-19 precautions. This means that the small businesses exemption does not apply when:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine related to COVID-19;
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee is caring for an individual subject to an order described in (1) or self-quarantine as described in (2); 
  5. The employee is caring for his/her son or daughter1 if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or   (1 “son or daughter” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age, or 18 years of age or older and incapable of self-care because of a mental or physical disability.)
  6. The employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

  • Qualifying for the Small Business Exemption: In order to qualify for the small business exemption, an authorized officer of the business must determine one of the following conditions applies:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; 
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or 
  3. 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 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.

We continue to work with many clients on these issues and are available to assist your business as needed.

Shareholders Associates
Eric C. Bellafronto Ernest M. Malaspina Shirley Jackson
Karin M. Cogbill Richard M. Noack Sean Bothamley
Jennifer Coleman Daniel F. Pyne III