COVID-19 UPDATE: Qualifying for the Small Business Exemptions from the Paid Leave Policies in the Families First Coronavirus Relief ActApr 14, 2020
Congress recently passed the Families First Coronavirus Relief Act (the “FFCRA”), which requires employers to provide their employees with paid sick leave or expanded family and medical leave.
The new law provides an exemption for small businesses with fewer than 50 employees to certain of these obligations. The Department of Labor recently issued some preliminary guidance, in the form of a Q&A, on how that exemption applies.
When doing so would jeopardize its viability as a going concern, a small business – under 50 employees – is exempt from providing:
- a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons; and
- b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons
The DOL emphasizes that the exemption only applies to leave for these specific purposes. Small business are still obligated to comply with the remaining paid leave policies in the FFCRA.
To claim the exemption, an authorized officer of the small business must determine that:
- The provision of paid sick leave or expanded family and medical leave would result in the business’s expenses and financial obligations exceeding available business revenues and cause it 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 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 these labor or services are needed for the business to operate at a minimal capacity.
There is no requirement to submit any paperwork to the Department to claim the exemption. Instead, the DOL merely requires that the business document its decision and show how the criteria in the regulation are satisfied.