Judy Kamens Compliance Specialist View Bio

HIGHLIGHTS

No Automatic Exemption for Small Employers under FFCRA
Employers with fewer than 50 employees are not automatically exempt from any of the paid leave requirements under the FFCRA.

Potential Exemption Applies for Child Care-Related Leave
Employers with fewer than 50 employees may qualify for an exemption from FFCRA requirements to provide paid leave for child care-related reasons.

No Exemption from Other Paid Leave Requirements
There is no small employer exemption from the requirements to provide paid leave for COVID-19 related reasons that do not involve loss of child care.

Job Restoration Exemption
Certain employers that provide paid leave for child care-related reasons and have fewer than 25 employees may qualify for a job restoration exemption.

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Effective April 1, 2020, the Families First Coronavirus Response Act (FFCRA), requires all private employers that have fewer than 500 employees to provide their employees with paid sick leave and expanded family and medical leave (paid leave) for specified reasons related to the coronavirus (COVID-19) pandemic. However, the FFCRA includes a provision under which certain small employers may qualify for an exemption from two of the FFCRA’s paid leave requirements.

Specifically, employers with fewer than 50 employees (small employers) may qualify for an exemption from the FFCRA’s requirements to provide paid leave due to an employee’s loss of child care resulting from COVID-19. This exemption is not available for the FFCRA’s requirements to provide paid leave for other COVID-19 related reasons.

The U.S. Department of Labor has provided guidance regarding the FFCRA’s small employer exemption in a set of questions and answers about the FFCRA and in a temporary regulation issued on April 1, 2020. This Compliance Bulletin provides a general summary of that guidance and outlines the criteria an employer must meet in order to qualify for the small employer exemption.

ACTION STEPS

All employers with fewer than 50 employees should become familiar with the obligations imposed on them under the FFCRA and with the specific criteria they must meet in order to take advantage of the law’s limited exemption from the requirement to provide paid leave for child care purposes.

Eligible Small Employers

An employer, including a religious or nonprofit organization, may qualify for the FFCRA’s exemption for small employers only if:

  • It employs fewer than 50 employees;
  • Leave is requested because a child’s school or place of care is closed, or because a child care provider is unavailable, due to COVID-19 related reasons; and
  • Providing the child care-related leave would jeopardize the viability of the small business as a going concern.

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