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The law is effective from April 1 to December 31, 2020.

The exemption is very specific and applies only if three conditions are met:

1. The employer is a small business with less than 50 employees, and
2. The employee’s leave is to care for his or her child whose school or place of care is closed (or child care provider is unavailable), but only if 
3. The requirements of FFCRA “would jeopardize the viability of the business as a going concern.”

So, even though a small employer may have less than 50 employees and determines the requirements jeopardize the viability of the business, if an employee needs leave for a COVID-19 related reason other than to care for his or her child, the exemption will not apply.

There is no application process. If the employer has less than 50 employees and the leave is to care for the employee’s child whose school or place of care is closed (or child care provider is unavailable), an “authorized officer of the business” must determine that:

• The leave would result in expenses and financial obligations that exceed available business revenues and cause the business to cease operating at a minimal capacity; OR
• The absence of the employee or employees would entail a substantial risk to the financial health or operational capabilities of the 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(s), and these labor or services are needed for the business to operate at a minimal capacity. 

The employer is required to document that the determination to deny the paid sick leave or Expanded FMLA leave request was made based on the criteria set forth in 29 C.F.R. § 826.40(b)(1). There is no requirement to submit the determination to the WHD, but the employer must retain the records in its files for four years regardless of whether the leave was granted or denied.

Yes, employers may exclude employees who are either “Health Care Providers” or “Emergency Responders.”

If you have questions as to whether the exclusion applies, please contact us.

No. Expanded FMLA provides a new qualifying reason for protected leave, not more weeks. An employee who has already used 12 weeks of leave under the FMLA is not able to use Expanded FMLA. The employee, however, may qualify for two weeks of paid sick leave.

Yes, if the employee is unable to work or telework because the employee is caring for his or her child whose school or place of care (or child care provider is unavailable) due to COVID-19 related reasons and has not taken any FMLA leave prior to April 1, 2020.

The initial two weeks of the Expanded FMLA leave is unpaid, but the employee may choose to use paid sick leave or accrued paid time off (if available) at the same time as unpaid Expanded FMLA leave. The remaining 10 weeks of Expanded FMLA leave would be paid at two-thirds the employee’s regular rate of pay, subject to the statutory caps on the total paid out by the employer.

Generally it is reasonable for an employer to require oral notice and sufficient information for an employer to determine whether the requested leave is covered leave. An employer is not permitted to require more documentation than what is allowed by the Department of Labor’s regulations.

As of the date of this post, there are no forms issued by the Department of Labor or WHD for employees to request paid sick leave or Expanded FMLA leave. Even so, before taking paid sick leave or Expanded FMLA leave, the employee is required to provide the employer documentation that includes:

1. Employee’s name;
2. Date(s) for which leave is requested;
3. Qualifying reason for the leave; and
4. Oral or written statement that the employee is unable to work because of the qualified reason for leave.

Yes, it depends on the qualifying reason.

Qualifying Reason 1: If the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, the employee must also provide the employer with the name of the government entity that issued the quarantine or isolation order. 

Qualifying Reason 2: If the employee was advised by a health care provider to self quarantine due to concerns related to COVID-19, the employee must also provide the employer with the name of the health care provider. 

Qualifying Reasons 3 and 4: As of the date of this post, the temporary rule appears to have a typographical error regarding documentation for Qualifying Reason 3 and 4.

Qualifying Reason 4 appears to require the employee to provide the employer with either the name of the government entity that issued the quarantine or isolation order to which the individual being cared for is subject, or the name of the health care provider who advised the individual being cared for to self-quarantine due to concerns related to COVID-19.

Qualifying Reason 5: If the employee needs leave because the employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons, the employee must also provide the name of the son or daughter being cared for, the name of the school, place of care, or child care provider that has closed or become unavailable, and a representation that no other suitable person will be caring for the child during the period of leave. 

Additional Materials: The employer may also request an employee provide additional materials as needed for it to support a request for tax credits.

Not necessarily. An employee may take paid sick leave under Qualifying Reason 2 only if a health care provider advises the employee to self-quarantine based on a belief that:

1. The employee has COVID-19;
2. The employee may have COVID-19; OR
3. The employee is particularly vulnerable to COVID-19; AND
4. Following the advice of a health care provider to self-quarantine prevents the employee from being able to work, either at the employee’s normal workplace or by telework.

The CDC has identified a number of reasons unrelated to a diagnosis or possible diagnosis of COVID-19 that may cause the employee to be vulnerable to COVID-19 – for example, older adults, pregnancy, or underlying health conditions. Employers should also consider whether the employee is asking for a reasonable accommodation under the Americans with Disabilities Act if the employee is requesting leave under Qualifying Reason 2.  

An employer is required to retain all documentation for four years, regardless whether leave was granted or denied. If an employee provided oral statements to support the paid sick leave or Expanded FMLA leave, the employer is required to document and maintain such information in its records for four years.