• Brian Senjem

Employer Exemption from FFCRA Paid Leave

The Department of Labor has provided clarification on how small businesses

can apply for an exemption from the Paid Leave requirements under the

Families First Coronavirus Response Act (FFCRA). 

Per the DOL, a small business may claim exemption from mandated paid leave ONLY if:

1) The employer employs fewer than 50 employees 2) Leave is requested because the child's school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons AND 3) An authorized officer of the business has determined that at least one of the following three conditions is satisfied:     > 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 the business to cease operating at a minimal capacity     > The absence of the employee 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     > 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 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. Important Takeaways 1) Small businesses are ONLY exempt from providing leave requests due to school closures or child care unavailability 2) Small businesses are NOT exempt from providing leave for any of the other types of permissible uses under the Act (ie an employee is sick or quarantined due to COVID-19 or an employee is caring for an individual who is sick or quarantined due to COVID-19). To Do The DOL does not provide specific instructions as to how to claim exemption.  We recommend that an authorized officer of the business makes a record of his or her conclusion that one or more of the three qualifying reasons apply and keep that record in your files, with the employee's Paid Leave Request Form, to use in case of an audit or challenge. For a full list of FAQs on the FFCRA from the DOL, visit this web page. Information specific to exemption is covered in Questions 58 and 59.

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