by Jon Newman
The Department of Labor has provided some guidance on application of FFCRA to small business of less than 50 employees.
A small business is an employer, including a religious or nonprofit organization, with fewer than 50 employees.
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 is exempt from providing
(a) paid sick leave due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons and
(b) expanded family and medical leave due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons
This is 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 one of the following:
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 mandated paid sick leave or expanded family and medical leave requirements only if the:
The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.
The Department of Labor simply says to elect the small business exemption, businesses should document why their business with fewer than 50 employees meets the criteria set forth by the Department. This process will be addressed in more detail in forthcoming regulations. However, the Department says not to send any materials them at this point.