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Small Business Exclusion under the Families First Coronavirus Response Act

Business Law COVID-19

The Families First Coronavirus Response Act, which among other things will provide mandatory emergency FMLA leave and sick leave, is effective April 1, 2020 and ends December 31, 2020.  Employers must post a notice about leave entitlements in a conspicuous location at their business.  If you require a copy of the notice, please contact Shinners & Cook, PC’s business and employment law attorneys at any time for additional information.

On March 31, 2020, the Department of Labor published its initial guidelines for the small business hardship exception.   Those guidelines are in anticipation of the Department’s emergency regulations which have not yet been published.  The guidelines are available at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

The small business hardship exception is limited to FMLA or sick leave due to a school or place of care closures only, not other sick leave reasons under the 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:

  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; or
  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.”

Please contact Shinners & Cook P.C.’s business and employment law attorneys at any time for additional information and support.