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New DOL Regulations (FFCRA) – How to Document Exempt Status from Paid Leave

The much anticipated Department of Labor Regulations (temporary) were just published on Wednesday, April 1. The new regulations explain how an employer with fewer than fifty (50) employees must document its declared exemption from the paid Emergency Paid Sick Leave and Emergency FMLA. Here are the new DOL Regulations on the FFCRA.

What employers qualify for the Exemption?

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide paid sick leave and paid expanded FMLA due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern. Read Answer 58.

Who makes the determination of the Exemption?

An authorized officer of the small business may make the determination that the imposition of the paid leave requirements would jeopardize the viability of the business as a going concern (in one of 3 ways).

Is the exemption applicable to all paid leave requests?

No. For the eligibility reasons other than school closings and child care unavailability, the paid sick leave (80 hours) portion of the FFCRA must still be provided to eligible employees.

How does a small business show its viability is jeopardized?

The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA 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 leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the 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 leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.

Is the documentation of the Exemption sent to the DOL?

No. An Employer that denies an Employee’s request for Paid Sick Leave or Expanded Family and Medical Leave pursuant to § 826.40(b) shall document the determination by its authorized officer that it is eligible for such exemption and retain such documentation for 4 years.

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