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Employers Want Clarification on Virus-Related Leave Mandates

March 20, 2020, 6:39 PM

Business groups, attorneys, and dozens of other callers flooded the Labor Department with questions on how the agency plans to implement new coronavirus-related paid family and sick leave requirements.

Protections for small businesses and health-care providers prompted a number of questions from participants in a virtual town hall hosted by the DOL Wage and Hour Division Friday. Participants also wanted to know how new paid leave obligations jibe with existing federal requirements and how they apply to employers already voluntarily offering leave benefits.

The law guarantees some workers impacted by coronavirus two weeks of paid sick leave and 10 weeks of partially paid family leave to care for a child. It also authorizes DOL to exclude health-care providers and emergency responders, and exempt businesses with fewer than 50 employees from the requirements if offering the leave would “jeopardize the viability of the business.”

The WHD held the town hall as a means of collecting questions and comments from stakeholders in order to inform the agency’s ongoing work to rapidly write regulations and guidance that interpret the Families First Coronavirus Response Act, signed into law Wednesday. Agency representatives on the call didn’t provide answers to the questions, but said they would be doing so in the future, likely on its website.

“We are working feverishly to issue guidance that addresses the issues that you’ve raised,” said Helen Applewhaite, the division’s acting associate administrator for policy, during the call.

The issues raised on the town hall demonstrated a high level of uncertainty and anxiety among employers and employment attorneys about the technicalities of the new rules, as businesses make sensitive decisions about whether to close operations permanently. The WHD is under immense public pressure to offer regulatory clarity to reduce the economic unpredictability for workers and businesses amid the spread of Covid-19, the disease caused by the novel coronavirus.

Small-Business Exemptions

“We are particularly interested in hearing about some of your guidance and ideas on exemptions,” said WHD Administrator Cheryl Stanton at the start of the call.

That’s exactly what she received.

Many participants, including advocates from the U.S. Chamber of Commerce and National Federation of Independent Business, want the agency to define how a business with under 50 workers will be able to demonstrate that offering leave would jeopardize their business viability.

“We’re asking that the department seriously consider all that it can do to make the exemption for those employers with fewer than 50 employees as broad as possible,” said Karen Harned, executive director of NFIB’s legal center, during the question period. “Anything you all can do to make the exemption process as streamlined, easy-to-understand, and as simple as possible would be greatly appreciated.”

On the opposite side of the company size spectrum, Marc Freedman, vice president of employment policy at the U.S. Chamber of Commerce, said his members have been asking how to apply the law’s exemption for large companies with over 500 workers.

“How should they count employees with regard to the 500 employee threshold, for instance involving subsidiaries and other business relationships?” Freedman asked.

Chris Jones, the senior vice president for government relations at the National Grocers Association, requested that supermarket employees qualify as emergency responders who would be exempted from the law. He asked that “our workers can manage this crisis and continue to feed the American public.”

Paid Leave Interplay

Another recurring theme of questions involved the interplay of the law’s emergency leave mandates with company-specific paid leave and benefits policies and with Family and Medical Leave Act coverage unrelated to the virus.

One caller from Oregon wanted to know if the new mandates would be in addition to or instead of paid sick leave requirements that exist under state law.

Business lobbyist Josh Ulman asked that the department address how the paid leave companies already have been providing in immediate response to the crisis would interact with the new law, which isn’t set to take effect until April 2.

Several callers sought clarity on how an employer would incorporate the FMLA updates on top of a worker’s pre-approved FMLA leave, such as to cover an employee’s recovery from surgery, for reasons unrelated to Covid-19.

Employers also frequently asked about their tax reimbursements for providing coronavirus paid leave. The WHD host said that topic falls outside the domain of her agency but that those comments would be forwarded to the U.S. Treasury Department to inform that agency’s separate implementing regulations.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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