How Will Emergency Family and Medical Leave Expansion Act Affect My Business

Posted December 17, 2020

The Novel Coronavirus (COVID-19) and the impact that has been left in its wake have forced us all to rethink many aspects of our lives. This has become especially apparent when it comes to how many small business owners have had to rethink our work lives and how we must take care of our employees. Some of the changes are simply the result of prudent business planning and some are the result of lawmakers passing legislation such as the Family First Coronavirus Response Act (FFCRA). This legislation, aimed at helping stem the spread of COVID-19, is designed to do three things:

Expand the Family and Medical Leave Act (FMLA) until the end of 2020 to cover leave and loss of income of employees;
Create two weeks of mandatory, paid sick leave for child care and other leave related to the Coronavirus; and
Provide for tax credits to help compensate employers for the cost of the paid leave mandated by the act.

For many small business owners that raises a couple of questions: “Does this act apply to me and my employees?” The answer is YES but with several exceptions. In general, the FFCRA applies to any private employer with fewer than 500 employees. Employees covered under the Emergency Paid Sick Leave Act, a part of the FFCRA, can take paid leave from work, if they are subject to a Federal, State or Local quarantine or isolation related to COVID-19, provided they fall into one of the following categories:

if the employee is advised by a health care provider to self-quarantine;
if the employee is experiencing COVID-19 symptoms and seeking a medical diagnose;
if the employee is caring for someone who is under a quarantine or isolation order or who was advised by health care provider to self-quarantine;
if the employee is caring for a child whose school is closed and/or childcare is not available due to COVID-19; or
if they are experiencing “any other substantially similar situation” to these.

Employers with fewer than fifty employees are characterized as a “small business” and may be exempt from providing paid sick leave due to school or place of care closures when doing so would “jeopardize the viability of the small business” as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that either:

Provision of the paid sick leave would result in the business’s expenses and financial obligations exceeding available revenues and cause the business to cease operating at a minimal capacity;
The absence of the employee requesting the paid sick leave would entail substantial risks 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, willing, and qualified, and who will be able, at the time and place needed, to perform the labor or services provided by the employee or the employees requesting paid sick leave or expanded family medical leave and these labor or services are needed for the small business to operate at a minimal capacity.

Employees should provide a written statement explaining which particular situation is triggering the emergency paid sick leave when asking for paid sick leave. An employer may obtain an immediate tax credit as a reimbursement for providing the paid sick leave. It is interesting to note that an eligible employee can use sick leave as soon as they are hired. Likewise, fulltime employees are allowed 80 hours of paid sick leave while part-time employees can receive their average number of hours worked within a two-week period. The employer cannot require an employee to use other paid leave they may have earned before using this paid sick leave under the act.

What questions may I ask my employees before they return to work:

During the time of this pandemic, a covered employer may ask their employees if they are experiencing symptoms of this pandemic virus and if they have been tested for COVID-19 or if they have been diagnosed with having contracted it. Currently, some of the most common symptoms are described as loss of the sense of taste and/or smell, fevers, chills, dry cough, shortness of breath or sore throat. An employer must maintain all information about an employee’s illness as a confidential medical record. We recommend that an employer keep abreast of what the CDC issues as the symptoms associated with the virus. The CDC provides resources to help guide employers when choosing questions to ask an employee to determine whether they pose a direct threat to the workplace.

In addition to the CDC medical guidance, we can give some additional legal related guidance. If an employer wishes to ask an employee questions or to have their temperature taken, the act does require the employer to have a “reasonable belief based on objective evidence” that this person may be ill. As with so many other parts of your business, documenting what you see, hear and observe is very important to not only keeping your other employees safe but also preserving your business’s ability to stay in operation.

The CDC advises that employees who start to show symptoms associated with COVID-19 should immediately leave the workplace. Employers can exclude those with COVID-19 or symptoms associated with COVID-19 from the workplace because their presence could pose a direct threat to the health or safety of others. An employer can require COVID-19 testing of employees before allowing them to come back into the workplace or to periodically determine if their presence poses a threat. This, however, is provided that the employer is following recommendations by the CDC or some other public health authority regarding whether, when and for whom testing or screening is appropriate. Testing, consistent with current CDC guidelines, will help an employer meet the “business necessity standard” that is an exemption to the American’s With Disabilities Act. Again, we advise any employer that obtains medical information about an employee regarding COVID-19, that it, as with any other medical information, be maintained separately from the employee’s regular personnel file.

Please feel free to give Michael Gruber, Jamie Haren, or Todd Kotler a call at (330) 497-2886 should you have any further questions on this or any legal matters you would like to discuss.