The effective date for the Families First Coronavirus Response Act ("FFCRA") is now April 1, 2020. If the job site is closed, the attached poster is to be emailed to the employees. The DOL’s website also provides a Questions & Answers section regarding the poster.
Employers with fewer than 50 employees may apply for an exemption from providing paid sick leave and expanded family medical leave. The DOL published limited guidelines but has not indicated how to apply for this exemption. We have been checking daily for further guidance from the DOL on how to apply for the exemption.
In the meantime, the guidelines are copied below and can be found at questions 4, 58, and 59 on the DOL website in a Questions & Answers section regarding the FFCRA.
Summary of Question 4:
If providing child care-related paid sick leave and expanded family and medical leave at businesses with fewer than 50 employees would jeopardize the viability of the business as a going concern, the small business would elect the exemption by documenting why the business meets the criteria. No materials should be sent to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.
When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?
An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave 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. A small business may claim this exemption if an authorized officer of the business has determined that:
- 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 these labor or services are needed for the small business to operate at a minimal capacity.
If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?
A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
- Employer employs fewer than 50 employees;
- 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
- An authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.
The DOL’s website provides further information regarding the FFCRA’s requirements.
Finally, on March 27, 2020 President Trump signed a $2.2 trillion stimulus package that includes $350 billion for small-business loans. The U.S. Chamber of Commerce prepared an excellent guide for forgivable loans under the Paycheck Protection Program. Small businesses can also seek relief through the U.S. Small Business Administration (“SBA”). The SBA currently offers COVID-19 related disaster relief to small businesses to help them overcome the financial challenges brought by COVID-19.