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Small Employer Exemption Approved for Expanded FMLA Leave and Emergency Paid Sick Leave under the Families First Coronavirus Response Act

Small Employer Exemption Approved for Expanded FMLA Leave and Emergency Paid Sick Leave under the Families First Coronavirus Response Act
On April 1, 2020, the Secretary of the United States Department of Labor (“DOL”) promulgated temporary regulations (the “Regulations”) to implement the public health emergency leave provided for under the Families First Coronavirus Response Act (“FFCRA”)—namely, the Emergency and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). Our comprehensive review of the EFMLEA and EPSLA, which require covered employers to provide leave for qualifying reasons effective April 1, can be found here.
Under the EFMLEA, a temporary amendment to the Family and Medical Leave Act (“FMLA”), employers are generally obligated to provide twelve (12) weeks of leave for employees who have been employed for thirty (30) days before the first day of leave if the employee is unable to work (or telework) due to a need for leave to care for the employee’s child under 18 years of age if the child’s school or place of care has been closed, or the child care provider of the employee’s child is unavailable, due to a public health emergency regarding COVID-19 as declared by a Federal, State, or local authority.  The first ten (10) days of the leave are unpaid and the remaining ten (10) weeks of leave are paid by the employer at two thirds (2/3) of the full-time employee’s regular rate of pay (for salaried employees, employers are required to pay two thirds (2/3) of the employee’s base salary for the weeks remaining after the initial 10-day period). Pay entitlement under the EFMLEA is limited to $200 per day and $10,000 in the aggregate per employee.
Under Section 5102(a)(5) of the EPSLA, a covered employer is obligated to provide an employee with eighty (80) hours of paid leave when the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions. Employees who take paid leave under the EPSLA for this reason are entitled to two thirds (2/3) of their regular rate of pay, with a cap of $200 per day, or up to $2,000 total.
Under the new Regulations, employers with fewer than fifty (50) employees are exempt from the requirement to provide leave under the EFMLEA and Section 5102(a)(5) of the EPSLA if doing so would “jeopardize the viability of the business as a going concern.” More specifically, a small business is entitled to elect this exemption if an authorized officer of the business determines the following:  
  1. The 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 leave under the EFMLEA or Section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the 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 leave under either the EFMLEA or Section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.  
In order to elect this small business exemption, the employer must document that a determination has been made pursuant to this criteria. The employer should not send such documentation to the DOL, but instead, retain the records in its files. Importantly, small employers are not exempt from providing leave to employees for the five (5) other qualifying reasons under the EPSLA, which include, for example employees seeking a COVID-19-related medical diagnosis or self-quarantining upon the advice of a health care provider due to COVID-19-related concerns.
Small employers who choose to exempt one or more employees pursuant to the Regulations, must still post the required FFCRA notice, which was issued on March 25. A brief discussion of that notice, and its posting and distribution requirements, can be found here.
If you have any questions or concerns about the small employer exemption under the FFCRA, or any other COVID-19-related compliance issues in the workplace, please reach out to the Employment and Labor Practice Group at Laddey, Clark & Ryan, LLP:
Our attorneys can also be reached at: 973-729-1880