Families First Coronavirus Response Act (FFCRA)
Small Business Exemption Information
The Department of Labor has released guidelines for employers impacted by the Families First Coronavirus Response Act relating to the paid leave and expanded family and medical leave provisions. Specifically, information on what businesses are eligible, what the exemptions are and what type of leave the exemptions will apply to.
Who it Applies To:
- Private employers with fewer than 500 employees.
What Are You Exempt From and How:
- Businesses with fewer than 50 employees may claim an exemption from the requirement to provide paid sick leave or expanded family and medical leave due to school closings or child care unavailability if the requirement would jeopardize the viability of the business.
- An exemption may be claimed if an “authorized officer” of the business determines the business meets one or more of the following criteria:
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- 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;
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- Absence of the employee or employees requesting paid sick leave or expanded family and medical would create a substantial risk to the financial health or operational capabilities of the small business because of the employees specialized skills, knowledge of the business or responsibilities; OR
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- There are not sufficient workers who are able, willing, and qualified 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 or services are needed for the small business to operate at a minimal capacity.
- Department of Labor (DOL) does not want employers to provide documentation of exemption; however, employers are required to retain all documentation of FFCRA emergency paid leave requests for four years, regardless of whether leave is granted or denied. Employers will need to have documentation stating how they qualify for one of the 3 listed exemptions.
What You Are Not Exempt From:
- Employers with fewer than 50 employees WOULD NOT be exempt from providing paid sick leave (2 weeks) for certain other reasons. These reasons include paid sick time taken by an employee who:
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- Is subject to a state, local or federal quarantine;
- Has been advised by a healthcare provider to self quarantine;
- Is experiencing symptoms of COVID-19 and seeking medical care;
- Is providing care for an individual subject to a federal, state or local quarantine or isolation; or
- Employees who are eligible to take either paid sick leave or expanded family and medical leave generally have a right to return to work and are protected from being fired, disciplined or otherwise discriminated against because they qualified for the leave.
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- But such employees are not protected from employment actions, such as layoffs, that would have affected them regardless of whether they took leave.
- An employee may elect to use, or an employer may require that an employee use, leave such as vacation or personal leave, already accrued, concurrently with expanded family and medical leave.
- Further guidance from the Department of Labor is expected.
If you have any questions about the Families First Coronavirus Response Act, or want a free consultation about any legal and risk issues concerning the coronavirus please contact us.