What is the Small Business Exemption from the paid leave provisions of the FFCRA?

Small employers (less than 50 employees) may be eligible for a “Small Business Exemption” from the Emergency Paid Sick Leave and Emergency Family and Medical Leave provisions of the FFCRA.

The rules governing this exemption are quite specific. Here is the current US Department of Labor (DOL) definition of the “Small Business Exemption”:

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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 these three conditions satisfied:
  • 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.

The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.
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Helpful Resources

US Department of Labor (DOL)
Comprehensive Covid-19 resource page providing employers with information on –among other issues –the paid sick leave and expanded family and medical leave provisions of the FFCRA, including:

Claremont Partner Mammoth HR (with ThinkHR)
COVID-19 Crisis Response Center. Essential employer resources such as a COVID-19 HR Guidance and Best Practices recorded webinar, a summary of the new Families First Coronavirus Response Act, and sample HR policies that employers can adopt.

Claremont Partner HR Service, Inc.
COVID-19 Employer Toolkit. Helps employers navigate the Coronavirus challenges. Resources include a Families First Coronavirus Response Act Q&A, advice on remote working and telecommuting, information on all aspects of reductions in force, and more.

Helpful FFCRA flow chart
This helpful FFCRA flow chart (courtesy of Filice Insurance Agency) provides a visual step-by-step guide to assessing if an employer and employee are subject to the FFCRA provisions.

Claremont Insurance Services and its affiliates do not provide tax, legal or accounting advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors before engaging in any transaction.