The Department of Labor Has Spoken!

We previously wrote about the Families First Coronavirus Response Act, which expanded emergency FMLA leave to employers with fewer than fifty employees. The Act requires employers to pay partial payments to employees who have to stay home to care for children because no other caretaker is available when that employee cannot telework and would otherwise have work to do at their job. The Act as signed by the President contains a provision stating that the Department of Labor has authority to issue regulations exempting small businesses with fewer than fifty employees from the Act if “the imposition of such requirements would jeopardize the viability of the business as a going concern.”

The Department of Labor has spoken, and we now have the exemption regulations. Instead of a small business potentially being exempted as a matter of course, the regulations are applied on a per-employee basis. A small business employer can deny emergency FMLA leave to an employee if:

     1. such leave would cause the small business's expenses and financial obligations to exceed available business revenue and cause the small business to cease operating at a minimal capacity; OR

     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 small business because of the employees’ specialized skills, knowledge of the business, or responsibilities; OR
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     3. there are not enough workers who are available, able, willing, and qualified to perform the labor or services provided by the employee or employees requesting leave, and those labor or services are needed for the small business to operate at a minimal capacity.

Because it is applied per-employee, and not to the small business as a whole, the small business employer is still required to post the FFCRA notice because the law technically applies to all small businesses. 

An employer does not need to send anything to the Department of Labor if it chooses to exercise the exemption. It needs to keep records of each approval and denial of such leave. If an employer decides to deny an employee’s request for emergency FMLA leave, the employer must document its authorized officer’s determination that the criteria is satisfied. If an employee makes oral statements supporting leave, the employer must document them. Documentation must be retained for at least four years.

If you are a small business owner and wondering how these laws apply to you or your employees, please give Jesson & Rains a call.