SMALL BUSINESS EXCEPTION TO FAMILIES FIRST CORONAVIRUS RESPONSE ACT

SMALL BUSINESS EXCEPTION TO FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The employee leave provisions of the Families First Coronavirus Response Act (the “FFCRA”) take effect this Wednesday, April 1, 2020.  Under these provisions, employees may be eligible for up to 80 hours of paid sick leave if they are unable to work or telework for one or more of the designated reasons relating to the coronavirus.  Eligible employees may also take leave under the FMLA for up to 12 weeks (the first 2 weeks are unpaid; the remaining 10 weeks are paid), in order to care for a child whose school or daycare has been closed due to an emergency relating to the coronavirus declared by a federal, state, or local authority.  The FFCRA generally applies to private sector employers with fewer than 500 employees and all public sector employers. 

However, businesses employing fewer than 50 employees may be exempted from providing SOME expanded leave benefits to employees.  More specifically, exempted small employers are not required to (1) provide expanded FMLA benefits, or (2) allow employees to take sick leave to care for a child whose school or daycare has been closed or whose child care provider is unavailable.  However, an exempted employer remains obligated to provide paid sick time for the other uses identified in the FFCRA.

In order to utilize an exception for small businesses, an officer of the company must determine that one of three factors applies to its operations:

  • The provision of paid sick leave or expanded family and medical leave would result in the small business’ expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; or
  • 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.

Based on current guidance, it does not appear a business must submit any type of formal application to utilize this exception.  Rather, an employer must simply document the reason for claiming the exception and retain such documentation in its own records.  Once properly documented, an employer can declare itself exempted from these new laws.

Masud Labor Law Group continues to follow developments, and will provide additional guidance if the process to utilize the small business exception changes.  

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