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DOL Issues Revised Emergency Paid Sick Leave Guidance; Limits Scope Of Small Business Exemption
As previously reported in an earlier Employment Law Alert, the emergency paid sick leave provisions of the Federal Families First Coronavirus Act (the “FFCA”) take effect April 1, 2020.
In anticipation of that effective date, the federal Department of Labor (the “DOL”) has published a revised and expanded “Questions and Answers” Guidance (the “Guidance”) concerning the FFCA.
This guidance addresses 59 distinct subject matters that relate to the complex application of the FFCA. Of particular note: The Guidance defines the scope of the FFCA exemption that applies to employers with fewer than 50 employees.
The text of FFCA implies a general exemption, from the paid sick leave requirements of the FFCA, for employers with fewer than 50 employees, that are experiencing economic hardships as a result of the coronavirus outbreak. Through the Guidance, the DOL adopts a narrowed interpretation of this small business exemption:
“A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
- employer employs fewer than 50 employees;
- 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 [certain financial exigencies exist.]”
Guidance, Q&A 59.
As such, unlike previous reports, small businesses are not broadly exempt from FFCA emergency paid leave requirements, and must provide employees with emergency paid leave benefits absent the limited exceptions described above. For example, under the Guidance, a small business is required to provide 80 hours of emergency paid sick leave to an employee that is absent from work as a result of a COVID-19 related illness.
In addition to the Guidance, in the coming days, the Internal Revenue Services is expected to publish instructions related to tax credits available to employers that incur expenses related to FFCA emergency leaves.
The rules and guidelines that relate to the FFCA, and to the other federal and state coronavirus relief programs, are moving targets. The Morse Employment Law team is following these, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Read our latest COVID-19 Alert.
IRS, DOL, and Treasury Issue Plan on Implementation of Payroll Tax Credit, Paid Leave and Other Employment-Related Provisions of the Families First Coronavirus Response Act
The Internal Revenue Service (IRS), U.S. Department of Labor (DOL), and U.S. Treasury Department issued a joint statement highlighting the employment-related provisions of the Families First Coronavirus Response Act (“the Act”), which was signed into law by President Trump on March 18, 2020 (see our previous alert on this subject here). The three departments offered a preview for small and mid-size businesses related to the implementation of these various provisions. A summary of their highlights is below.
- DOL plans to release regulations relating to the Act by April. While employers are not required to comply with the Act until April 2, the DOL and IRS made clear that employers, unless exempted, may begin to provide paid leave under the Act and take advantage of the available tax credits immediately. The anticipated regulations will provide further guidance on the sick and child care leave requirements of the Act.
- DOL plans to release emergency guidance related to small business exemptions related to leave. The Act provides an exemption for businesses with less than 50 employees from leave requirements related to school and daycare closings where the leave requirements would threaten the viability of the business. The DOL plans to issue guidance with “simple and clear criteria” on the qualifications related to this exemption.
- DOL will be issuing a temporary non-enforcement policy to allow employers to come into compliance. Under the temporary policy, the DOL will not bring enforcement actions against employers for violations of the Act, but instead will work with employers to assist in compliance with the Act, provided the employer has acted reasonably and in good faith.
- The IRS will be releasing guidance later this week about how employers can obtain the tax credits related to providing sick or child care leave. In short, employers will obtain the credit by withholding the amount of money equal to the cost of leave provided from their payroll taxes, rather than depositing with the IRS. If the amount withheld is not enough to cover the paid leave provided, employers will be able to file a request for payment on an accelerated basis, to be processed in two weeks or less. The IRS will release further details on the procedure in their anticipated guidance.
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Equal Opportunity Commission Issues Updated Guidance Related to COVID-19 Preparedness for “Essential Businesses”
The federal Equal Employment Opportunity Commission (the “EEOC”) has issued revised guidelines that define Americans with Disabilities Act (“ADA”) compliance standards for employers operating under current COVID-19 pandemic conditions.
In general, the ADA broadly restricts business decisions that consider employee health or medical conditions. Through the guidelines, the EEOC has temporarily suspended certain ADA restrictions in an effort to permit “Essential Businesses” – businesses that are exempted from various shelter-in-place and business restrictions order now in effect in several regions – to adopt practical strategies to maintain safe business operations.
Several of the key concepts are below:
- With respect to employee inquiries regarding COVID-19 symptoms: “An employer may send home an employee with COVID-19 or symptoms associated with it. Employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.”
- With respect to workplace infection control strategies: “Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. Similarly, with respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.”
- With respect to reasonable accommodation requests by employees that are unrelated to COVID-19: “The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.”
- With respect to hiring practices during COVID-19 pandemic: “An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.”
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Massachusetts Governor Orders “Non-Essential” Businesses To Close Physical Workplaces By Tuesday, March 24
On March 23, 2020, Massachusetts Governor Charlie Baker issued an Emergency Order requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers, customers and the public.
The Emergency Order goes into effect on Tuesday, March 24th at noon, and remains in effect until Tuesday, April 7th, or until otherwise ordered.
Please refer to the list of “COVID-19 Essential Services” that are exempted from the Emergency Order.
Businesses that are designated as “Essential” are directed to follow social distancing protocols for workers in accordance with guidance from the Massachusetts Department of Public Health, as aggregated at the following sites:
COVID-19 Prevention and Treatment
COVID-19 Guidance and Directives
Businesses and organizations not on the list of essential services are encouraged to continue operations through remote means that do not require workers, customers, or the public to enter or appear at workplace premises impacted by the Emergency Order.
Information concerning this Emergency Order is developing.
The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.
Resources for Employers Managing the Impact of COVID-19
COVID-19 is causing significant disruption at every level of business – and responses are varying and evolving rapidly. Morse is monitoring the situation closely on behalf of our clients. To help keep you as up to date as possible, below we provide some helpful federal and state resources to help you and your business keep up on the latest as well.
- Equal Employment Opportunity Commission (EEOC)
- The U.S. Department of Labor (DOL)
- Massachusetts Attorney General’s Office
- Massachusetts Department of Unemployment Assistance (DUA)
See our website for additional information regarding these resources.
Congress Adopts Emergency Paid Family Medical Leave and Sick Time Standards; Contemplates Payroll Tax Deductions and Cash Payments to Offset Employer Costs
By: Matthew Mitchell
Massachusetts Employment Law Blog 