By Christina M. Reger, Esq.

The DOL issued additional guidance to the First Families Coronavirus Relief Act (FFCRA) in the form of Q&As over the weekend. You should check out all of the questions here.

But, what I want to cover one questions in particular: Question 58.

The DOL provided some clarification on the small business exemption to the FFCRA and the language in the Act that states that to qualify for the small business exemption, the business under 50 employees would have to show that the “imposition of the requirements would jeopardize the viability of the business as a going concern.”

So….. here is what the DOL says that means:

QUESTION: 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 (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; 
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.

According to the answer to Question 59 (the last one in this Q&A), the determination would have to be made by “an authorized officer of the business.”

And, “[t]he Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety. “

So, for now, grab those FFCRA policies and request forms, to establish and support the exemption, and put your employment law attorney on speed dial (already).