The DOL Issues A Lengthy Rule Clarifying the FFCRA Including the Small Business Exemption

On April 1, 2020, the Department of Labor issued a 124-page Rule regarding the Families First Coronavirus Response Act (FFCRA), which addresses a variety of legal and practical topics including the small business exemption. The small business exemption is only for leave associated with child care. This Rule supplements the Question and Answer guidance from March 27, 2020. To access Question and Answer guidance click HERE. The access the DOL’s Rule issued April 1, 2020 click HERE.

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 only if an authorized officer of the business has determined that:

1.  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;

2.  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

3.  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.

The DOL added, “The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.”

Our attorneys are familiar with the CARES Act and the PPP and are here to assist you in determining if your business may qualify for relief under this program. Please contact us at 215-887-0200 or by going to the Attorneys page of this website.