Within the Families First Coronavirus Response Act (FFCRA), which takes affect today, there is an exemption option for employers with fewer than 50 employees whose business viability would be impacted due to the FFCRA employer requirements.
In DOL guidance (Q58 & Q59) released this past weekend, the exemption would relieve qualified small businesses from providing emergency paid sick leave and paid expanded family and medical leave for reasons only related to school closings and child care unavailability. All employers, even those with fewer than 50 employees, are still required to provide up to 80 hours of paid sick leave for employees under the new Emergency Paid Sick Leave Act when an employee is unable to work or telework and meet one of the criteria below.
- The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19. (This requirement is not the same as a work-at-home or shelter-at-home order.)
- 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.
The DOL guidance outlined the criteria a small business must meet to be relieved of the emergency paid sick leave and paid expanded family and medical leave related to school and day care closings. The business must have fewer than 50 employees, the leave must be due to a school or child care closure or the unavailability of a child care provider due to COVID19, and an authorized officer of the business has determined one of the conditions below applies.
- 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; 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 the labor or services are needed for the small business to operate at a minimal capacity.
Details as to how and when this documentation should be received by the DOL and how an exemption is granted is not clear. However, employers wanting to pursue the exemption should prepare a response to the DOL criteria listed above. Detail is also needed as to how a small business replies to an employee request for leave related to a child’s school or day care closing.
Bukaty Companies will provide additional details as information becomes available.