On April 1, 2020, the Department of Labor issued a final regulation implementing guidelines for taking coronavirus-related emergency paid sick leave (EPSL) and expanded FMLA (FMLA+) benefits as first laid out in the Families First Coronavirus Response Act (“FFCRA”). The Department of Labor estimates that up to 61 million workers may qualify for these benefits under its final rule.

The final regulation is largely similar to guidance the Department of Labor had been continually issuing and updating since President Trump signed the FFCRA on March 18. As previously noted, the FFCRA generally requires employers with fewer than 500 employees provide paid sick leave taken for COVID-19 related reasons. However, the regulations clarify that an employee may use (or employers require) that vacation or personal leave be used simultaneously with expanded FMLA leave.

Small Business Exceptions: The final regulation also expands on previously-issued guidance regarding exceptions for employers considered small businesses with fewer than 50 employers when extended leave jeopardizes the viability of the business. These employers are not required to provide extended leave when doing so jeopardizes the viability of the business. Such situations include when:

  • Expenses rise above revenue and the employer ceases operating “at a minimal capacity”;
  • The requesting worker’s absence poses a substantial risk to the employer’s financial health or operations; or
  • There are insufficient workers to cover the work of the employee requesting the absence.

However, small businesses who meet these exceptions are still required to give workers directly affected by the virus up to two weeks of paid time off.

The final rule remains effective through December 31 of this year.

Please contact your KDDK attorney or any KDDK labor and employment law professional for additional information and individualized guidance on this or any related topic.

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