Tag Archives: FFCRA

FFCRA and CARES ACT WEBINAR

Yesterday, my partner Kevin Perkey, who focuses his practice on tax law, and I presented a Webinar entitled COVID-19: THE IMPACT ON YOUR BUSINESS AND EMPLOYEES.  The webinar focuses on the FFCRA and certain provisions of the CARES Act.  Thank you to the hundreds of you who watched.   If you were unable to watch the Webinar, or want to see it again, it can be accessed at the following link. https://vimeo.com/401032682/9969809358

Also, one clarification on the small business (under 50 employees) exception.  While it does apply to both Expanded FMLA and Emergency Paid Sick Leave, it only applies when leave is requested because the child’s school or place of care is closed, or the child care provider is unavailable, due to COVID-19 related reasons.  And if that is the reason you still must show that one of the following apply:

 

       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.

 

Again, the DOL expects you to act in good faith when claiming this exemption and in all of your efforts to comply with the FFCRA.

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DOL Clarifies FFCRA Small Business and Health Care Provider Exemptions

Late Saturday afternoon the Department of Labor issued more FAQs on the FFCRA.  These additional FAQs provide guidance on two subjects I have received many questions about:  1. What employees qualify for the “health care provider and emergency responder exemption”?; and 2.  What must I show for the small business exemption to apply?

The health care provider and emergency responder exemption allows the employer to designate certain employees as exempt from the FFCRA’s provisions.  In a bit of a surprise the DOL clarified that, for the purposes of the FFCRA health care provider and emergency responder exemption, a health care provider is “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy , or any similar institution, employer, or entity.”   Furthermore, any individual employed by an entity that contracts with any of the above institutions or employers is also included in the definition of “health care provider” for the purposes of the FFCRA exemption.

Emergency responder is equally broad, and includes anyone in law enforcement, firefighters, paramedics, EMTs, 911 operators, and military and national guard among others.

On the small business exemption the Department of Labor states:

 

  1. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
    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.

 

The Department of Labor makes clear that the business does not have to “apply” for the exemption, and does not have to call or write the Department to seek exempt status.  Instead, an authorized officer must make the call that one of the three tests set forth above will be met.  The Department does stress that it expects employers claiming this exemption to have documentation to support their claim.  This could include, for example, financial documentation showing that complying with the Act and granting leave will cause business expenses and financial obligations to exceed available business revenues, a description of how letting the employee with specialized skills take leave will create a substantial risk to the business’s ability to continue to operate, the lack of availability of qualified replacements who are ready, willing and able to work, and other similar documentation.

The Department of Labor has also stated that it will grant a 30 day grace period on enforcing penalties to those employers who have violated the FFCRA but have acted in “good faith ” in doing so.  With this small business exemption, make sure there are facts to support your claim so that you are at least acting in good faith in the event the Department determines your business is not exempt.

 

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DOL Updates FFCRA FAQs

Last night the DOL issued updated FAQS for the FFCRA ( that’s a lot of alphabet soup!). You can find the new FAQs here https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

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DOL Releases Required FFCRA Poster

The DOL just released  the FFCRA poster that covered employers ( those with less than 500 employees) must post.  It must be posted  in a conspicuous place that is a high traffic area for employees .  This is usually the break room, the employee bulletin board- you know, where you post your other workplace required posters.

 

Here is the link https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

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DOL Says FFCRA Is Effective April 1st!

On March 18th the President signed the Families First Coronavirus Response Act ( FFCRA) which provides for expanded FMLA and Emergency Paid Leave in certain limited circumstances related to the Coronavirus pandemic.  You can read my recent blog posts on the FFCRA for more detail.  Yesterday the DOL issued some guidance, which provided some clarity on a few issues, including the effective date of the FFCRA.

The DOL states that the FFCRA will be effective April 1st, which is one day earlier than everyone expected.  This is not a case of the DOL changing the rules, since the FFCRA states that it will be effective “no later than 15 days from passage”.  Still, you have one less day to prepare.

The  DOL also clarified the following issues:

  • Overtime must be included when calculating pay due to employees under the FFCRA
  • Paid Sick Leave is capped at 80 hours
  • Paid Sick leave and Expanded FMLA run concurrently

And, the DOL had this to say about the potential small business exemption from the FFCRA that I have had so many questions about:

If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

So, more details are forthcoming about the potential exemption, but apparently submitting information to the DOL in order to “apply” for the exemption will not be necessary.

The DOL is supposed to issue FFCRA regulations in April.  Until then, you can get additional details from the DOL by accessing this link

www.dol.gov/agencies/whd/pandemic/ffcra-questions

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