Corporate & Business/Apr 3, 2020

Department of Labor Issues Updated Guidance Regarding Exemptions from the Families First Coronavirus Response Act

The Department of Labor has issued additional guidance in the form of FAQs regarding the Families First Coronavirus Response Act’s paid sick leave provisions contained in the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act (summarized here). Included in this additional guidance are more answers regarding employees on furlough or unemployment, a list of what are considered health care providers and emergency responders (both are exempted from having to provide paid leave), and an important update on the requirements for the exemption for small businesses with fewer than 50 employees.

According to this guidance, an employer with fewer than 50 employees is entirely exempt from providing paid leave under the Emergency Family and Medical Leave Expansion Act and exempt from the Emergency Paid Sick Leave Act to the extent employee(s) are requesting leave to care for a dependent child because of school closings, place of care closings, or child care provider unavailability if an officer of the employer determines providing the leave would cause

  • the employer’s expenses and financial obligations to exceed revenues, forcing the employer to cease operating at a minimal capacity;
  • a substantial risk to the financial health or operational capabilities of the employer because of the employee’s or employees’ specialized skills, knowledge of the business, or responsibilities; OR
  • the employer to have an insufficient number of employees who are able, willing, qualified, and available at the time and place needed to perform the work needed for the employer to operate at a minimal capacity.

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