Families First Coronavirus Response Act

Human Resources FMLA
1

Good morning,

I apologize if the answer to my question is in the archives, but I searched archives and only found a posting from March 23, so am posting for updated advice.

We have employees who have taken leave d/t COVID 19 exposures. According to the FFCRA, employees are entitled to 80 hours of paid leave for circumstances such as this. However, I’ve been advised that some businesses of less than 50 employees may be exempt from this if complying with this would be a financial hardship to the viability of the business. Is this correct?

How is jeopardizing viability of the practice characterized? We wouldn’t need to close our doors if we paid 1 or 2 employees, but with increasing exposures likely, it would be challenging to pay employees on an ongoing basis. But, we have had to hire prn employees to catch up on backlog of work d/t employee leave, which is adding to our payroll. Additionally, we are currently looking to hire other longer term employees to help with our workflow and to be available when employees need leave.

For background, we are a new 2 physician practice still getting established…

TIA

2

First of all, being a healthcare entity, you are also exempt from paid sick leave, if you choose to be. DOL has not yet published guidance on how to exercise that exemption, but you can always point to the plain language in the law and the FAQ.

Paying people for 10 days of sick leave is “free,” i.e. you may deduct those wages from your payroll tax payment.

DOL has not yet published guidance on “jeopardizing viability”; I suspect it will be similar to the ADA’s “undue hardship” language:

Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.