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.
KMK Law articles and blog posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. The laws/regulations and interpretations thereof are evolving and subject to change. Although we will attempt to update articles/blog posts for material changes, the article/post may not reflect changes in laws/regulations or guidance issued after the date the article/post was published. Please consult with counsel of your choice regarding any specific questions you may have.
ADVERTISING MATERIAL.
© 2022 Keating Muething & Klekamp PLL. All Rights Reserved
Topics/Tags
Select- Labor & Employment Law
- Arbitration
- Coronavirus
- Employment Law
- Labor Law
- Employee Benefits and Executive Compensation
- Discrimination
- Disability Discrimination
- Race Discrimination
- IRS
- OSHA
- Department of Labor
- NLRB
- Employer Policies
- Sexual Orientation Discrimination
- Litigation
- Americans with Disabilities Act
- Retirement
- Social Media
- Accommodation
- ERISA
- National Labor Relations Act
- National Labor Relations Board
- Employer Handbook
- Employment Litigation
- Reasonable Accommodation
- ACA
- Affordable Car Act
- Wage & Hour
- EEOC
- NLRA
- ADAAA
- Title VII
- Federal Arbitration Act
- Unions
- Employer Rules
- Sexual Harassment
- 401(k)
- Technology
- Privacy
- Transgender Issues
- Workplace Accommodations
- FMLA
- Employment Settlement Agreements
- Disability
- Workplace Violence
- Paycheck Protection Program
- Sixth Circuit
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- Securities Law
- Preventive Care Benefits
- Health Savings Account
- SECURE Act
- US Department of Labor Employee Benefits Security Administration
- Religion Discrimination
- Gender Identity Discrimination
- Posting Requirements
- Class Action Litigation
- Disability Law
- E-Discovery
- Evidence
- Benefits
- Overtime Pay
- Representative Election Regulations
- Family and Medical Leave Act
- Environmental Law
- Department of Justice
- Privacy Laws
- Healthcare Reform
- Older Workers' Benefit Protection Act (OWBPA)
- Telecommuting
- Electronically Stored Information
- Affirmative Action
- Compensable Time
- Equal Opportunity Clause
- Pregnancy Discrimination
- Security Screening
- Supreme Court
- Occupational Safety and Health Administration
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Unemployment Insurance Integrity Act
- American Medical Association
- Attendance Policy
- Return to Work
- Seniority Rights
- Classification
- Confidentiality
- Disability Leave
- Equal Pay
- Fair Minimum Wage
- Federal Minimum Wage
- Genetic Information Discrimination
- Media Policy
- Misclassification
- National Origin Discrimination
- Retaliation
- Social Media Content
- State Minimum Wage
- Wage Increase
- Employment Incentives
- HIRE Act
- Social Security Tax
- Taxation
- Antitrust
Recent Posts
- The Practical Employment Law Podcast: The Future of Arbitration
- The Practical Employment Law Podcast: The Gig Economy
- The Practical Employment Law Podcast: Labor & Employment Law Update Week of 3/7/2022
- The Practical Employment Law Podcast: Labor & Employment Law Update Week of 2/7/2022
- Supreme Court Re-Implements Stay of Vaccine Mandate for Employers, Upholds CMS Mandate
- The Practical Employment Law Podcast: Twelve Thoughts About Vaccine Mandates
- Update on Status of Federal Contractor Mandate and OSHA’s ETS
- The Practical Employment Law Podcast: Employment Law Advice from Ebenezer Scrooge
- Update on Status of All Federal Vaccine Mandates
- The Practical Employment Law Podcast: Federal Vaccine Mandate(s) Update