Scenario: James and Martha Smitherton own a funeral and crematory business in the northwestern United States, Smitherton Family Funerals and Cremations. Smitherton’s serve 240 families a year with a staff of three full-time licensed funeral directors/embalmers (James, Todd and Kimberly) and a part-time apprentice. They also employ a full-time office support person to assist Martha in the office. The rest of their staff consists of 18 part-time employees who are scheduled as needed and based on their availability.
Both Todd and Kim have worked for the funeral home for several years, and while both have children, they are in high school and college. The recent pandemic has stretched the funeral home staffing resources rather thin as nonessential employees are sheltering at home per their state mandate. As a designated essential business, the funeral home continues to operate and provide services to those families dealing with the death of a loved one. Indeed, they are unfortunately experiencing a higher than normal case count.
Recently, Todd approached James and formally requested a paid leave from work under the Families First Coronavirus Response Act (FFCRA). James asked Todd if he or anyone in his immediate family or someone he was caring for was showing symptoms of COVID-19. Todd informed him that he nor anyone he was caring for was showing signs of the virus. Todd simply stated that he felt it was in the best interest of himself and his family (especially as his teenage children were not able to go to school) that he not be at work during this crisis and that he wished to take paid leave. James initially perceived he needed to grant the request, but uncertain of his obligations under this new act, he reached out for assistance.
What Are the Rules?
FFCRA in general requires employers even with less than 500 employees to provide such employees with paid sick leave or expanded family and medical leave for reasons related to COVID-19. These rules are only in effect until Dec. 31, 2020. Specifically, covered employers are obligated to provide this paid sick leave in the following situation to all their employees:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (as directed by federal, state, local government order or on the advice of a health care provider) and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because they are caring for someone quarantined (as directed by federal, state, local government order or on the advice of a health care provider) or caring for a child (under 18) whose school or child care provider is closed due to COVID-19.
An employer must provide to employees that have been employed for at least 30 days:
- Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where the employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed due to COVID-19.
*Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
A business may be exempt from providing mandated paid sick leave or expanded family and medical leave requirements if they meet three conditions:
- The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity.
- The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and the labor and/or services are needed for the small business to operate at a minimal capacity.
Did the Employer Make Any Mistakes?
No, James is carefully investigating what his obligations are to his employee by seeking appropriate guidance.
Resolution of the Issue
It is important to evaluate the facts of Todd’s request, the requirements of FFCRA and the needs of the business.
Todd’s request for paid leave does appear to be a qualifying request as he does have a son under age 18 unable to attend school as it has been closed due to COVID-19. Under FFCRA, caring for a child unable to attend school would allow an employee to receive paid leave at two-thirds the employee’s regular rate of pay for up to 12 weeks.
However, the U.S. Department of Labor has issued rules that exempt employers with fewer than 50 employees (“small businesses”) from its requirements if compliance would jeopardize “the viability of the employer’s business as a going concern.” In reviewing the three conditions for exemption and the operational needs of James’ business, it is clear that the business would suffer with only two licensed funeral directors and a higher than normal case load.
Paying two-thirds of Todd’s salary, paying for additional staff to replace Todd’s role as well as the potential for declining average revenue per call is a significant risk for the business. Kim also has a similar family situation. If James grants leave for Todd, he could be faced with a similar request from Kim, leaving him as the only licensed director.
Based on all the facts, James can request an exemption to the FFCRA paid leave requirements and deny Todd’s request.
He can explain to Todd how essential he is to the business and try to provide as much flexibility in his schedule to meet the needs of his family situation as safely as possible given the PPE and safety protocols they are following.
It is always critical to make decisions based on facts and information rather than emotion. James made a wise decision to seek guidance rather than simply approving Todd’s request because he believed he had no other choice.
Please let us know if you have any questions or concerns about how you should be addressing employee requests for leave during this time.
This article originally appeared in the June 2020 issue of American Funeral Director, published by Kates-Boylston Publications, and is being shared with permission. Visit www.americanfuneraldirector.com to subscribe.