Alina Nadir
Mar 31, 20203 min
This post is a further update to our earlier post: Guidance Issued for Employer Relief Offered by the Families First Coronavirus Response Act
In addition to Alina Nadir, this post was authored with input from Paul Keneally and Jennifer Shoemaker.
On March 30, the U.S. Department of Labor issued guidance regarding two of the exemptions contained within the Act – the small business exemption and the health care provider exemption.
The FFCRA provides that small businesses with fewer than 50 employees can claim an exemption to the requirement to provide paid or partial paid leave for employees who have no childcare due to the pandemic. A small business can claim the exemption by showing that being required to provide the leave would jeopardize the viability of the small business.
The DOL’s new guidance clarifies that a business can make that showing by establishing one of the following situations:
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.
Remember, a small business with fewer than 50 employees is only exempt from the FFCRA requirement to provide paid or partial paid leave if the following three conditions are met:
The employer employs fewer than 50 employees;
The 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 clarified who exactly is a “health care provider” eligible for paid sick leave under the FFCRA if the individual is told to self-quarantine due to COVID-19 concerns. A health care provider who is eligible includes a licensed doctor of medicine, nurse practitioner or “other health care provider permitted to issue a certification for purposes of the FMLA.”
The DOL also clarified that the following “health care providers” are employees who may be exempted by their employer for paid sick or family leave under the FFCRA. The DOL stated:
[A]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.
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