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Small Employer Coverage under the EPSLA and EFMLEA

Introduction

On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”). The FFCRA includes two key Acts which pertain to employment law, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). Both laws seek to alleviate growing employment concerns related to COVID-19. These laws took effect April 1, 2020 and will remain in effect through December 31, 2020. Throughout the FFCRA, there are many exemptions and exclusions for small business employers in the private sector, which are relevant to both employees and employers.

Exemptions to the “Covered Employer”

Generally, the FFCRA applies to all private employers that employ less than 500 employees at the time the employee would take leave, with the exception of qualifying small businesses. The FFCRA does not apply to employers who employ over 500 employees. Therefore, one of the most important questions relates to the number of employees that an employer employs at the time the employee(s) requests leave pursuant to the FFCRA.

If an employer gains new employees between April 1, 2020 and December 31, 2020, putting the business over the 499 employee threshold, that employer would not have to offer employees paid leave under the FFCRA. Conversely, should an employer lose employees, putting it below 500 employees, that employer must provide qualifying leave to employees who request time off at that time. In making these determinations, employers should count full-time employees, part-time employees, employees on leave, temporary employees, joint employees, and day laborers supplied by a temporary agency. Independent contractors are not included in the calculation.

The Department of Labor (“DOL”) recently explained the small business exemption under the FFCRA, which relieves certain small businesses of the obligation to provide paid leave for qualifying reasons. However, employers must meet each of the articulated requirements, which makes this a narrow exemption. First, the employer must have less than 50 employees. Second, the employee must request time off to care for his or her child whose school or place of care is closed, or because the child care provider is unavailable. Third, the employer must establish that if the employer were to permit the qualifying leave, such leave would “jeopardize the viability of the business.” If the employer satisfies these requirements, it does not have to provide leave.

The DOL promulgated regulations, which should be officially published by April 6, 2020, expanding on many aspects of the FFCRA, including what employers must prove to qualify for this small employer exemption. At this time, there are three things an employer may be able to demonstrate to establish that providing leave would jeopardize the viability of business: (1) such leave would cause the expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or (3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labors or services are needed for the small employer to operate at minimal capacity. Lastly, the small business employer must document, for its own records, the facts and circumstances that meet the above criteria to justify such denial of leave. Small businesses are instructed not to send material or documentation to the DOL.

If you feel your rights under the Families First Coronavirus Response Act have been violated, or if you have any questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Wrady Michel & King. You can contact us online or by calling us at (205) 319-9724.