Feds issue new guidance for paid sick leave & small businesses, individuals – here’s the latest

Editor’s note: Jodi Coverly is Director of Marketing & Business Development for Hutchison PLLC.

RALEIGH – The Department of Labor has issued new, user-friendly guidance regarding the requirements of the Families First Coronavirus Response Act.

You can access the Q&A here and further guidance here.

We have summarized the new information this guidance provided below.

(If you have any questions related to the Families First Coronavirus Response Act, the joint guidance or any other issues arising from the current COVID-19 emergency, please contact Amalie Tuffin at atuffin@hutchlaw.com, Frances-Ann Criffield at fcriffield@hutchlaw.com or Ashley Pittman at apittman@hutchlaw.com.)

Questions:

If providing childcare-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, and for now you should retain this documentation (do not send anything to the Department of Labor at this time). So far, the only context of the exemption is that it will apply where providing the paid leave would jeopardize the viability of the business as a going concern, so such documentation should include a headcount of eligible employees, and could include an assessment of the financial cost the mandated paid leave would have on the business, particularly in light of the economic downturn caused by the pandemic. The Department of Labor will issue regulations in the near future that will give clearer instructions on this documentation and how to qualify for the exemption.

If I am home with my child because his or her school or place of care is closed, or childcare provider is unavailable, do I get paid sick leave, expanded family and medical leave or both—how do they interact?

You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless you elect to use existing vacation, personal or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.

Also: Employers are required to post notice of the Families First Coronavirus Response Act in the workplace. The DOL has provided a model notice here and frequently asked questions about the notice here.

Look for more Client Alerts from us as circumstances warrant.

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