type of healthcare provider one could think of. 500 Employee Threshold Calculation Questions have been asked regarding how the 500-employee threshold is measured for the law. Question #2 of the DOL Employer Fact Sheet clarifies that the measurement of the 500 employees is as of the time the employee's leave is taken. Therefore, it should be considered a “rolling 500” not a “point in time 500” as of the effective date of the law (April 1st). So, if an employer dips below or inches above the threshold, the availability of COVID-19 paid leave for employees might change. The availability of employer tax credits pursuant to payments for those leaves would follow suit. 50 Employee Threshold Calculation While the exact converse to the 500- employee calculation (the lower-end, 50- employee threshold) is not directly addressed, it is reasonable to assume that the same logic would be applied to this threshold, as well. More guidance on this is expected. No Retaliation Employers may not retaliate or discriminate against any employee who elects to take COVID-19 paid family leave. Effective Date and Duration The effective date of the paid sick leave mandate is April 1, 2020. The mandate expires December 31, 2020. Enforcement Grace Period The DOL has announced a 30-day non- enforcement period for employers to come into compliance. The 30-day period runs from March 18, 2020 through April 17, 2020. During that time, DOL enforcement actions will not be taken against employers that have made reasonable and good faith efforts to comply with the law. That condition will be deemed met only if violations were not willful and are remedied as soon as practicable, and the employer supplies a written commitment to comply in the future.
75-Mile Radius Rule The new family paid leave benefit deviates from the underlying FMLA law as it relates to the 75-Mile Radius rule. Under the regular FMLA provisions, an employer is subject only if they have 50 or more employees within a 75-mile radius. This new law does not allow for that exception and thus applies more broadly. Small Employer Exemption The regular FMLA law applies to employers with at least 50 employees and exempts employers below that threshold. The new extended paid family leave does not automatically exempt small employers under the 50-employee threshold. However, small employers may be eligible for an exemption from these required family paid leave benefits on the basis that doing so would jeopardize the viability of the business as a going concern. To qualify, an authorized officer of the business would need to certify meeting any of the following criteria: a. Providing leave would cause the
business’s expenses and financial obligations to exceed available revenues and the business to cease operating at a minimal capacity substantial risk to the financial health or operational capabilities of the business The employer would not be able to operate at a minimal capacity because it would have insufficient workers to perform the labor or services provided by the absent employees.
b. The absences would create a
Healthcare Provider Exemption Employers of healthcare providers may exempt certain employees from COVID-19 paid family leave and thus opt-out of providing this extended paid family leave. The DOL has provided a detailed definition of the types of entities that qualify as healthcare providers and whose employees may be that may be exempted. The list is exhaustive and includes just about every
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