By: Barry Dorans

This is to supplement my article of March 25, 2020 regarding COVID – 19. Regulations have been issued that narrow the expansion of the FMLA.

Limitations: An employee will not be able to use expanded FMLA due to child care if: (1) the employer offers teleworking; or (2) the child is in question is 14 years or older, unless special circumstances exist, or the work hours are outside of the normal daylight hours; or (3) the employer has more than 50 employees and the employee has already used their 12 weeks of FMLA leave.

Exemption: An employer may self-certify that they are exempt from the FMLA expansion if: (1) less than 50 employees; and (2) the leave is requested because the child’s school or childcare is closed; and (3) the authorized officer of the business has determined that: (a) the provision of leave would result in expenses and obligations exceeding revenues and cause failure; or (b) the absence of employees requesting leave would cause a substantial risk to the financial health or operational capabilities of the business because of their skills or responsibilities; or (c) there are not enough workers who are willing and qualified to perform the labor provided by the employees requesting leave and those services are needed to operate at minimal capacity.

I would be very reluctant to rely on subparagraph A since there are many loan programs directly through the SBA and private lenders backed by the SBA. Exemptions B and C could apply if key employees request leave due to childcare and that prevents a business from providing services and those positions cannot be filled. I assume you would want to discuss with your key employees whether they will want to use the child care leave before you certify you are exempt.

Documentation: If an employee uses leave and you want to obtain the tax credit, you need a written request from the employee including:

  1. Employee’s name;
  2. Dates for which the leave is requested;
  3. Statement of the reason for the leave with documentation supporting that reason.
    1. If due to quarantine – identification of person advising quarantine;
    2. If due to care for a child:
      1. The name and age of the child;
      2. Name of school;
      3. Statement that no other person will be providing care for that child during leave; and
      4. If the child is over 14 and work is during daylight, description of the special circumstances.

The above brief is a summary and the regulations are changing regularly. If you have questions, please contact our firm to schedule a consultation.