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Updated Critical Guidance from the Department of Labor on the Small Business Exemption to the Families First Coronavirus Act

The following guidance is being provided by OlenderFeldman LLP based upon the Small Business Exemption to the Families First Coronavirus Response Act (“FFCRA”), with official updated guidance provided by the U.S. Department of Labor (“DOL”). See https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. This information is subject to change based upon revised guidance that may follow from the DOL and all clients should refer to the aforementioned website for updated information.

On March 28, 2020, the DOL provided much-needed guidance to small businesses under 50 employees to exempt themselves (rather than needing apply to the DOL for relief) from the most financially burdensome provisions of the FFCRA allowing for extended paid leave of up to 12 weeks:  (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons or (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.

In order to exempt the business from compliance with these specific provisions, an authorized officer must determine that one of the conditions appearing below will exist if the business is forced to provide the leave and would jeopardize the viability of the small business as a going concern:

    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 it 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.

Additionally, the above guidance suggests that the DOL does not currently intend to second guess the good faith business judgment of a small business as it weighs the financial impact of FFCRA compliance.