Small Business Exemption to FFCRA


The Families First Coronavirus Response Act (FFCRA) contains a potential exemption for certain small employers who cannot afford to provide the childcare-related paid leave requirements under the FFCRA.

Although we are still waiting on the official regulations to be issued by the DOL, there has been additional guidance issued by the DOL in the agency’s FAQs describing the situations when a small employer may claim exemption from the emergency paid sick leave and expanded FMLA paid leave requirements due to the need to care for a child in light of school closure or unavailable childcare.  Here’s a nutshell summary:

A small business is exempt from mandated paid sick leave or expanded FMLA leave under the FFCRA only if:

1.      The employer has fewer than 50 employees,

2.      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

3.      An authorized officer of the business must make the determination that at least one of the following conditions is satisfied:

a.       Providing the paid sick leave or expanded FMLA 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;  

b.      The absence of the employee or employees requesting paid sick leave or expanded FMLA 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  

c.       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.

These issues continue to evolve on a daily basis. If you have any questions about whether the small employer exception applies to you, or other questions related to the FFCRA, please contact Megan Moritz or another member of our firm’s Employment Law Practice Group.