COVID-19 Employer Notice Obligations PLUS DOL FAQs

On Behalf of | Jan 4, 2020 | Employment Law

REMINDER – Employee Notice Obligations PLUS the U.S. DOL Addresses Small Business Exemption, Interplay of FMLA and Emergency FMLA, and other Issues In Updated FAQs on Families First Coronavirus Response Act.

As a reminder, the Families First Coronavirus Response Act (the “Act”) goes into effect today, April 1, 2020.  That means employers are obligated to provide their employees with notice of the Act’s leave opportunities.  The DOL’s poster, which, if distributed by email or via company website or intranet, satisfies this notice requirement, can be found here.

Additionally, the U.S. Department of Labor (DOL) issued updated  FAQs concerning the Act  Notably, the DOL has provided guidance regarding the Act’s small business exemption (available to employers with less than 50 employees) and addressed the interplay with “regular” FMLA leave and emergency FMLA leave provided for in the ACT.  For example:

Guidance on the Small Business Exemption (see FAQs #58 and #59):  The DOL has outlined how employers with less than 50 employees are exempt from providing paid sick leave and emergency FMLA leave under the Act.  Namely, a small business will be exempt if an authorized officer of the business has determined that:

  • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small 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 or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Interplay of FMLA leave and Emergency FMLA leave (see FAQs #44 and #45): The DOL has also clarified that an employee may take a total of 12 workweeks during a 12-month period between both FMLA and the Act’s covered reasons.  Thus, if an employee has taken some leave under FMLA, but not all 12 workweeks, the employee may take the remaining portion of leave available under the emergency leave provisions.  Therefore, if an employee has already exhausted his or her FMLA leave for the relevant period, the employee may not take additional emergency family and medical leave.

—– If you have further questions or concerns please contact:

Genevieve Bradley

(703) 485-3535

[email protected]

Sean Gibbons

(804) 441-8440

[email protected]