By Tracey I. Levy

The U.S. Department of Labor has issued a mandatory poster and updated its initial guidance to answer many more of employers’ questions with regard to the application of the Emergency Paid Sick Leave law, which takes effect April 1, 2020.  The poster must be posted in a conspicuous place on the employer’s premises or on a website for employee information, or emailed or direct mailed to all employees.

The DOL’s guidance includes the following key points, many of which we had referenced in our last HR Strategy article on the new federal and New York State emergency paid sick leave laws.

Exception for Small Businesses:

Employers with fewer than 50 employees can demonstrate that providing Emergency Paid Sick Leave or Emergency FMLEA will jeopardize the viability of their business as a going concern, and thereby claim an exemption from the laws’ requirements, if an authorized officer of the business determines that:

• Providing the paid leave would cause the business’s expenses and financial obligations to exceed available revenues, such that the business would cease operating at a minimal capacity;
• The absence of covered employees would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
• The business lacks sufficient workers who are able, willing, qualified and available at the time and place needed to cover for the employee(s) requesting paid leave and the work the requesting employees would perform is needed for the small business to operate at minimal capacity.

It remains unclear what documentation an employer will need to maintain to meet this legal standard, so employers seeking the exemption may want to err on the side of saving any potentially relevant financial records, communications and notes of their deliberative process.

Counting the 500-Employee Threshold

The federal emergency paid leave laws apply only to employers with fewer than 500 employees.  Only individuals employed in the United States (including all 50 states, the District of Columbia, or any Territory or possession of the U.S.) are included in that number.  Multi-national entities with a relatively small U.S.-employee presence therefore are covered by the federal laws as to their U.S. employees, even if they have more than 500 employees globally.  Also, full-time and part-time employees count equally toward meeting that threshold, as do employees on leave, temporary employees (even if they are employed through a temp agency), and day laborers supplied by a temporary agency.  Only independent contractors are excluded from the headcount.

Documenting Leave is Requested for a Qualifying Reason

The DOL has referred employers to the Internal Revenue Service for forms, instructions and information on what documentation is required to support an employee’s request for leave and what documentation must be retained to support the employer’s claim of a tax credit.  The IRS has not yet issued that guidance, but employers can check https://www.irs.gov/coronavirus for updates.

Generosity is Permissible, but Not Reimbursable

For higher-earning employees, employers may choose to pay them above the statutory cap for leave taken as Emergency Paid Sick Leave or Emergency FMLEA.  However, employers cannot claim a tax credit for payments in excess of the statutory cap.

Employers may also permit (but may not require) employees to apply their regular accrued, paid leave time under the employer’s policies to supplement the amount received for Emergency Paid Sick Leave or Emergency FMLEA.  For example, an employee who is receiving two-thirds of salary as Emergency Paid Sick Leave may request to use accrued, paid leave in one-third of a day increments to augment the federal law benefit.  In this situation, as well, the employer tax credit is limited to payments up to the statutory amounts.

Intermittent Leave May Be an Option

Employees must take Emergency Paid Sick Leave in full-day increments.  With that caveat, employers may permit an employee to use Emergency Paid Sick Leave and Emergency FMLEA on an intermittent basis (rather than in a single block of time) in select circumstances.  Intermittent leave may be authorized for an employee who is caring for a child whose school or child care center has been closed due to COVID-19 precautions, regardless of whether the employee is reporting to the workplace or working remotely.  If leave is being taken under any of the other five Emergency Paid Sick Leave categories, the guidelines provide that, unless the employee is working remotely, intermittent leave is not available.

Paid Leave is Not Required for Furloughed Employees or if the Workplace Has Been Closed

Employees are only eligible for paid leave if they are still working as of the date the leave is requested.  If the entire worksite has been closed or the requesting employee has been laid off, even temporarily, and the employee is therefore not doing any work for the employer, even remotely, then the employer is not required to provide any amount of paid COVID-19-related leave under the federal laws.  If an employer closes a worksite while an employee is already on covered paid leave, the employee must be paid for leave take only up to the date of closure.

Emergency FMLEA Counts as FMLA Time

For employers who are covered by the federal Family and Medical Leave Act, leave previously taken within the employer’s designated 12-month period counts against, and may thereby reduce, the leave available under Emergency FMLEA.  Similarly, to the extent an employee takes leave in the next eight months for Emergency FMLEA, the leave taken will count against the employee’s 12-month FMLA leave entitlement.