Labor & Employment Developments Blog

On April 1, the Department of Labor (DOL) issued a temporary rule to help employers navigate the recent expansion to paid family medical and sick leave established under the Families First Coronavirus Response Act (FFCRA). The rule reiterates several of the “critical issues” clarified by the DOL in previous guidance on the FFCRA, further details the “small business exemption” to the FFCRA, and clarifies the instances in which the expanded family medical leave and paid sick leave overlap. 

Small Business Carveout

As summarized in our previous post regarding the DOL’s guidance on the FFCRA, a small business employer may be exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 reasons, when doing so would “jeopardize the viability of the small business as a going concern.” The rule codifies the determination of whether an employer can viably continue in business for the foreseeable future into a three-prong test, as previously detailed by us. 

Employers seeking an exemption are required to document how and why an authorized officer of the business determined that one of the three conditions of the test for exemption was met. The rule does not prescribe any particular form of recordkeeping, however, employers must document the facts and circumstances demonstrating the need for the exemption, and retain the documentation of any denial of leaves pursuant to the exemption, for four years. 

Intersection Between Paid Family Leave and Paid Sick Leave

Notably, the rule also addresses the ambiguity regarding the maximum number of weeks of leave an employee may qualify for under the FFCRA. The expanded family medical leave and paid sick leave intersect and run concurrently where an employee qualifies for both leaves and uses the paid sick leave to bridge the gap of the unpaid portion of the expanded family medical leave. In instances where an employee exhausts two weeks of paid sick leave, and then later requires leave under the expanded family medical leave, the employee would be eligible for up to 12 additional weeks of leave provided under the expanded family medical leave, with the first 10 days of leave being unpaid.

If you need assistance with regulatory compliance under the DOL’s new rule, or have any questions, please contact a member of the KMK Labor & Employment Group.