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Process for Exemption from Certain Leave Requirements under FFCRA

On April 6, 2020, the U.S. Department of Labor published a temporary rule (“Rule”) pursuant to the Families First Coronavirus Response Act (“FFCRA”). The Rule sets forth the process by which private employers with fewer than 50 employees can exempt themselves from providing certain leave benefits under the paid sick leave and family leave provisions of the FFCRA.

First, it is important to note that there is no application process for exemption. Employers may exempt themselves from the requirements under the FFCRA pursuant to an analysis of qualifying reasons set forth in the Rule. However, employers should not take this analysis lightly. Each of the qualifying reasons sets forth a harsh standard that must be met in order to truly qualify for the exemption.

Second, the exemption only operates to exempt the employer from the requirement to provide leave due to childcare issues as set forth in the Rule. As such, employers will still be required to provide paid sick leave for any of the other qualifying reason contained within the FFCRA, but would be exempt from 1) providing 80 hours of paid sick leave due to school closures and lack of childcare, and 2) providing twelve weeks of leave under the Family Leave provision of the FFCRA.

In order to qualify for the exemption an employer with fewer than 50 employees must demonstrate that one of the following qualifying criterion is met:

(1) [Providing paid sick leave or expanded family and medical leave to care for the employee’s son or daughter whose school or place of care is closed, or child care provider is unavailable, for COVID–19 related reasons] would cause the employer’s expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity;

(2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of the employee(s) specialized skills, knowledge of the business, or responsibilities; or

(3) the employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services that the employee or employees requesting leave provide, and these labor or services are needed for the employer to operate at a minimal capacity.

For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the employer from operating at minimum capacity, respectively.

Documentation of the facts and circumstances surrounding the denial of leave for one or more of the above reasons is required by the Rule. As the FFCRA is a new legal requirement for employers, it is not yet known the amount of risk an employer is assuming by exempting itself from certain paid leave requirements. Therefore, we highly recommend that you contact an employment attorney who is well-versed in the FFCRA statute and related regulations to assist you in obtaining and preparing the proper documentation to support an exemption determination.

Attorneys from Stock and Leader’s Business and Employment Group are constantly monitoring the quickly evolving legal landscape and are ready to help you navigate through this unprecedented time.

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