Three Surprising Details about the Expanded Paid Sick and Family/Medical Leave under the Families First Coronavirus Response Act (FFCRA)

The Families First Coronavirus Response Act (FFCRA) expanded paid sick leave, as well as paid family and medical leave for employees who are not working for various reasons related to the coronavirus.  The bill that was signed into law on March 18, 2020 is not as detailed as the subsequent guidance being issued by the Department of Labor and the Internal Revenue Service.  The details provided by DOL and the IRS for FFCRA have some surprising elements.  This blog post shares three of those surprises with you.

1. The paid leave requirements do not take effect until April 1, 2020. This effective date has a lot of employers scrambling to determine if they should be downsizing their workforce to avoid having to pay for two weeks of sick leave and up to 12 weeks of paid family or medical leave under the expanded provisions.  A word of caution about terminating employees instead of paying them for sick or family/medical leave: as an employer, if the employee applies for unemployment (which has also been expanded under the CARES Act), your employment taxes may increase.  See e.g., https://dwd.wisconsin.gov/covid19/public/ui.htm.
2. Small Employers with less than 50 employees can be exempt from offering the paid leave options, but only for leave requests relating to school or day care closures. According to FAQs 58 and 59 of the DOL link above, small employers may be exempt from offering paid sick leave and paid family/medical leave if the following three conditions are met:

• The employer employs fewer than 50 employees;
• The leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
• An authorized officer of the business has determined that at least one of the following three conditions is satisfied:
  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
• 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.

3. Any person working for a health care provider, including nonclinical staff, may be exempt from the expanded paid sick leave and paid family/medical leave opportunity. In FFCRA, Congress exempted “certain health care providers” and “emergency responders” from the paid leave requirements.  The DOL went further in its guidance by expanding “health care provider” to include “anyone employed at any doctor’s office, hospital, healthcare center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home healthcare provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer or entity.”  That is quite a broad definition of who may be exempted from being able to take paid sick or family/medical leave.

The DOL also encourages employers to be “judicious” when using the definition to exempt health care providers from paid leave so that employers can help minimize the spread of the coronavirus.  This might mean limiting the exemption to situations when the employee is asking for leave because their child’s school or day care is closed, but not when the employee is sick or has been exposed to someone who is sick from the virus.  Health care employers who are considering the exemption must balance the need for health care workers who are desperately needed to care for patients with their duty to keep both patients and employees safe and healthy.

If you have questions about how FFCRA or the CARES Act may apply to your business, please contact the Center for Health and Wellness Law, LLC.  We are here to help you through these uncertain times