Late Saturday afternoon the Department of Labor issued more FAQs on the FFCRA. These additional FAQs provide guidance on two subjects I have received many questions about: 1. What employees qualify for the “health care provider and emergency responder exemption”?; and 2. What must I show for the small business exemption to apply?
The health care provider and emergency responder exemption allows the employer to designate certain employees as exempt from the FFCRA’s provisions. In a bit of a surprise the DOL clarified that, for the purposes of the FFCRA health care provider and emergency responder exemption, a health care provider is “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy , or any similar institution, employer, or entity.” Furthermore, any individual employed by an entity that contracts with any of the above institutions or employers is also included in the definition of “health care provider” for the purposes of the FFCRA exemption.
Emergency responder is equally broad, and includes anyone in law enforcement, firefighters, paramedics, EMTs, 911 operators, and military and national guard among others.
On the small business exemption the Department of Labor states:
- When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing paid sick leave and expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
- The provision of paid sick leave or expanded family and medical leave 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 paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small 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 paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
The Department of Labor makes clear that the business does not have to “apply” for the exemption, and does not have to call or write the Department to seek exempt status. Instead, an authorized officer must make the call that one of the three tests set forth above will be met. The Department does stress that it expects employers claiming this exemption to have documentation to support their claim. This could include, for example, financial documentation showing that complying with the Act and granting leave will cause business expenses and financial obligations to exceed available business revenues, a description of how letting the employee with specialized skills take leave will create a substantial risk to the business’s ability to continue to operate, the lack of availability of qualified replacements who are ready, willing and able to work, and other similar documentation.
The Department of Labor has also stated that it will grant a 30 day grace period on enforcing penalties to those employers who have violated the FFCRA but have acted in “good faith ” in doing so. With this small business exemption, make sure there are facts to support your claim so that you are at least acting in good faith in the event the Department determines your business is not exempt.