By the Seay Management Consultants Team

Effective April 1, 2020, the Families First Coronavirus Response Act (FFCRA) provides paid sick leave and expanded Family and Medical Leave for specific reasons related to COVID-19.

This has left many employers with under 50 employees (who were not covered under traditional FMLA regulations) with questions, specifically surrounding whether or not they too are covered under FFCRA.

There is an exemption available but it is only for one component of the FFCRA regulation. This pertains to an employee’s request for leave to care for his or her child, whose school or child care facility is closed or the care provider is unavailable. If this kind of leave request would impact the viability of the business operation, a small employer can self-determine that they are exempt from the requirement. This exemption is both for the paid sick leave and EFMLA. According to the Department of Labor, there is no formal application process.

The exemption is not automatic (like traditional FMLA). In making this determination the employer should:

• Evaluate if the leave would result in expenses and financial obligations that exceed business revenues and would cause the small business to cease operation (even at a minimal capacity);
• Examine if an employee’s skills, knowledge of the business, or responsibilities would cause a substantial risk to the financial health or operational capabilities of the small employer if the absence is granted; OR
• Qualify that there are insufficient employees able, willing, and with the essential skills at the time and place needed to perform labor or services provided by the employee, and these labor or services are needed for a business to operate at a minimal capacity.

Under FFCRA, when calculating the total number of employees at a business, the count should include any individuals on the payroll. This includes:

• Full time employees
• Part time employees
• Employees on leave
• Temporary employees jointly employed
• Day laborers hired through staffing agencies

There are exclusions in the employee count such as for workers in the District of Columbia, U.S. territories, and outside the United States.
We remind employers that thorough documentation is key. Government enforcement agencies operate under a policy that says that the burden of proof is on the employer. In other words, employers must be able to prove that their policies and procedures comply with state and federal employment regulations.

Please contact your Seay Management Consultant if you have any questions about the FFCRA or any other HR issue. We appreciate having you as a friend and client of our firm.