Guidance for employers with fewer than 50 employees under the Families First Coronavirus Response Act (FFCRA)
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New guidance from the US Department of Labor addresses the exemption from the FFCRA’s paid leave requirements for employers with fewer than 50 employees. Under the guidance, these employers are exempt from the requirement to provide paid sick leave or expanded FMLA leave, in both cases,
due to school or place of care closures or child care provider unavailability
for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. The
DOL's Q & A
(questions 4, 58 & 59)
explains that a small business may claim this exemption if an “authorized officer” of the business has determined that:
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- 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
- 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 small business to operate at a minimal capacity.
The method to obtain this exemption has not yet been announced. We are monitoring this issue and awaiting the DOL to issue guidance and rule-making on how to articulate this standard. The DOL has announced that it will observe a non-enforcement period until April 17, 2020 so long as an employer attempts in good faith to comply with the FFCRA, pays benefits owed and promises to comply going forward.
The
DOL advises that an employer should retain appropriate documentation, including any needed substantiation to support the credit.
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Even if an employer qualifies for this exemption, they still must provide up to 80 hours of paid sick leave for employees to use for the other reasons under the new Emergency Paid Sick Leave Act
including when an employee is unable to work or telework due to a need for leave because:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis
- The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
