All employers with fewer than 500 employees, including nonprofits, must provide two weeks of paid leave and likely are required to provide up to 12 weeks of paid FMLA under FFCRA. Employers will be paid back by the government through a payroll tax offset or additional refunds. The only exemption for the FMLA paid leave is for employers with 50 than fewer employees for whom this obligation would jeopardize their viability. We have no details on that at this point so all employers should assume they will be required to do this and get reimbursed. Details below.

Notice requirements for FFCRA. All employers with fewer than 500 employees must post a notice of FFCRA. Unless all employees are still reporting to your physical worksite, employers should post the model poster by email communication or on an internal, frequently visited employee website. The DOL has provided more guidance on this posting requirement.

New fact sheets. The DOL released fact sheets for employers, employees, and questions and answers on Tuesday, March 24. These shed more light on these mandates for all employers with under 500 employees.

Here are a few key facts that affect all employers with fewer than 500 employees:

All employers (no exemptions) will be required to provide two weeks paid leave to employees that are unable to work or telework because the employee:

  1. is subject to a government quarantine or isolation order related to COVID-19
  2. has been advised by a health care provider to self-quarantine related to COVID-19
  3. is experiencing COVID-10 symptoms
  4. is caring for a person subject to quarantine as described in (1) or (2)

Employers must also provide up to 12 weeks paid Expanded FMLA leave because the employee is unable to work due to a bona fide need to leave to care for a child whose school or childcare provider is closed or unavailable for a reason related to COVID-19.

The FFCRA creates a limited exemption for these 12 weeks’ leave related to school and childcare closings. To qualify, the business must:

  • Employ less than 50 employees; and
  • The imposition of these requirements would jeopardize the viability of the business as a going concern.

Exemption Regulation. There are no regulations yet on how to apply for this exemption.
These are expected from the DOL in April 2020. Employers who feel this exemption
applies to them should document why your business (with less than 50 employees) meets
the criteria and wait until further direction is given.

100% reimbursement to Employers. The FFCRA provides that employers will receive an immediate offset against payroll taxes and the IRS will send a refund to those employers
not completely reimbursed through the payroll tax offset.

In addition to regulations on exemptions, we await clarification on several issues including:

  • documentation required to receive tax credit under FFCRA;
  • availability of partial leave under FFCRA;
  • more detail on how the IRS will refund employers if needed.

We will continue to keep you updated as information becomes available.

Sarah Kissel, on behalf of the Scholz Nonprofit Law Team

Also see: Client Update: COVID-19 Wisconsin’s Safer at Home Order