Pamela Tahim Thakur
Important New Guidance Regarding Small Business Exemptions from Paid Leave Requirements and “Health
UPDATE: The U.S. Department of Labor Issues Important New Guidance Regarding the Small Business Exemption from the Paid Leave Requirements of the Families First Coronavirus Response Act (FFCRA) and “Health Care Provider” Exclusion
The Families First Coronavirus Response Act (FFCRA), which became law on March 18, 2020 and goes into effect on April 1, 2020, requires private employers with fewer than 50 employees to provide employees with paid sick leave for “specified reasons related to COVID-19.” Ever since the law’s enactment, employers have sought additional guidance from the government regarding an exemption from the paid sick leave requirements of the law for small businesses with fewer than 50 employees, as well as a possible exclusion from the law for “health care providers.”
On March 28, 2020, the Department of Labor (DOL) finally delivered some much anticipated answers on its website containing Frequently Asked Questions pertaining to the Families First Coronavirus Response Act (FFCRA). With respect to the small business exemption, the DOL provided the following information:
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:
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;
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.
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 certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
employer employs fewer than 50 employees;
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
an authorized officer of the business has determined that at least one of the three conditions described [ABOVE] is satisfied.
The DOL provided additional FAQs with an answer to many employers’ question of whether the employer must provide paid sick leave or expanded family and medical leave if the employer’s workplace is closed? Specifically, companies that are closed or have furloughed employees because of lack of work are not required to provide paid sick leave or expanded family and medical leave under the FFCRA. In addition, the DOL explained that if the employer is open for business, but furloughs certain employees after April 1, 2020 (the effective date of the FFCRA) because of lack of work, this employee would not be entitled to paid sick leave or expanded family and medical leave.
The DOL offered the following answers regarding who is a “health care provider” that may be excluded by their employer from paid sick leave or family and medical leave under the FFCRA:
Who is a “health care provider” for purposes of determining individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave?
The term “health care provider,” as used to determine individuals whose advice to self-quarantine due to concerns related to COVID-19 can be relied on as a qualifying reason for paid sick leave, means a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
The employment law attorneys at Thakur Law Firm, APC are knowledgeable in the latest developments in employment law and COVID-19-related issues in the workplace, and they are ready to assist you immediately.