Under the Families First Coronavirus Response Act (“FFCRA”), employers with fewer than 500 employees are required to provide emergency paid sick leave and expanded family and medical leave under certain circumstances. Importantly, though, a self-administered exemption exists from one aspect of the FFCRA for employers with fewer than 50 employees.

Families First Coronavirus Response Act (“FFCRA”)

There are two main parts of the FFCRA, providing a combined maximum of 12 weeks of paid leave:

1. 1) 80 hours of paid sick time (Emergency Paid Sick Leave) for employees directly impacted by COVID-19, including leave to care for the employee’s child if the child’s school or child care center has been closed, or if the child care provider is unavailable due to COVID-19 precautions; plus
2. up to ten additional weeks of paid leave (under the Family and Medical Leave Act (“FMLA”)) if the reason for leave is the need to care for a child as a result of a school closing or unavailability of child care due to COVID-19.

Detailed FAQs on the FFCRA are available online at https://ohaganmeyer.com/2020/03/20/thenew-families-first-act-employer-faqs/

Small Employer Exemption For Employers with Fewer Than 50 Employees

The small employer exemption only applies to Emergency Paid Sick Leave (i.e., 80 hours of paid leave) and expanded FMLA leave provided for the closure of a school or the unavailability of child care due to COVID-19. There is no exemption available to Emergency Paid Sick Leave provided for an employee who has been exposed to COVID-19 and is self-quarantining because of a government order or physician instructions; has been diagnosed with or is seeking a diagnosis of COVID-19; or is caring for someone with COVID-19.

When Can a Small Employer Utilize the Exemption?

Pursuant to regulations issued by the U.S. Department of Labor on April 6, 2020, private employers with fewer than 50 employees may elect an exemption when providing the paid leave would jeopardize the viability of the business as a going concern.

As applied to the dental industry, a practice with fewer than 50 employees may utilize this exemption to deny paid leave under the FFCRA to an otherwise eligible employee if an authorized officer of the practice determines that one of the following circumstances exist:

(i) Providing the requested leave would cause the expenses and financial obligations of your practice to exceed available business revenues and cause your practice to cease operating at a minimal capacity;

(ii) The absence of the employee requesting leave under the FFCRA would pose a substantial risk to the financial health or operational capabilities of your practice because of the employee’s specialized skills, knowledge of the business, or responsibilities; or (iii) There are not enough 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 requesting leave under the FFCRA, and these labor or services are needed for your practice to operate at a minimal capacity.

Documenting the Exemption

To elect this exemption, the practice must document that an authorized officer – which in most cases will be the owner – has made a specific determination pursuant to the above criteria, including the facts and circumstances that satisfy the criteria. The key is to create a written document reflecting that the above criteria were considered and a decision made that an exemption was necessary because of one or more of the criteria. The documentation must be retained in the practice’s files. There is no requirement to submit the documentation to an agency for approval. It is a completely self-administered process. The documentation is necessary in case an employee complains to the Department of Labor (“DOL”), and the practice must respond to the complaint.

Required Postings

Regardless whether you elect to utilize this exemption, your practice is still required to conspicuously post a notice to employees explaining the FFCRA’s paid leave provisions.