Coronavirus/COVID-19 Update: Tuesday, April 14, 2020

The U.S. Department of Labor (DOL) recently published guidance on how small businesses employing less than 50 employees can receive an exemption from the Families First Coronavirus Response Act requirement that employers provide emergency paid sick leave and extended paid leave to employees impacted by the COVID-19 pandemic.

First, the law provides that small businesses and non-profits (under 50 employees) are exempt from providing emergency leave if doing so would jeopardize the viability of the business.

Specifically, under the DOL rule a small employer is exempt from the requirement to provide such leave when:

1. Such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
2. The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
3. The small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity

The DOL recognized that FFCRA leave entitlements have little value if they cause an employer to go out of business and, in so doing, deny employees not only leave but also jobs. Therefore, DOL’s rules attempted to extend the leave benefits as broadly as practicable, but not in circumstances that would significantly increase the likelihood that small businesses would be forced to close.

To elect this small business exemption, the employer must document that the determination has been made pursuant to the criteria set forth by the DOL. The business does not need to notify the DOL or send the documentation to the DOL; rather, an eligible business must simply retain the records of the determination in its business files.

Boreale Law can assist your business in performing and documenting leave determinations under the FFCRA. We are here to answer questions regarding your paid leave policies/practices, and provide guidance as you continue to navigate these uncertain times.