COVID-19: Paid leave exemptions for small business

Updated as of April 10, 2020

The Families First Coronavirus Response Act (FFCRA) mandated new paid leave requirements for employers with less than 500 employees to support employees dealing with the COVID-19 outbreak. The requirements are effective on April 1, 2020. The FFCRA also established two potential exemptions from the leave requirements. This brief describes recent material from the Department of Labor (DOL) as to the application of the exemptions. 

Under the law, employees are temporarily eligible for both up to 80 hours of Emergency Paid Sick Leave and Emergency Family Leave related to the COVID-19 outbreak. Recognizing the strain the requirements will impose on small businesses, relief is provided—through loan programs and tax credits—to help mitigate these costs and help small businesses remain viable during the COVID-19 outbreak.

Financial viability exemption

The FFCRA also provides the DOL with authority to create regulations that exempt small businesses with fewer than 50 employees from providing leave when the imposition of the requirements would jeopardize the viability of the business as a going concern.

While we expect more guidance to follow, DOL issued some materials that begin to provide information as to how the waiver will be implemented. Here’s what veterinary practices need to know now about the waiver:

Waiver criteria

DOL has issued FFCRA Frequently Asked Questions that begin to include more details about how DOL expects small businesses with fewer than 50 employees to attest that the new leave requirements put the business’s financial viability in jeopardy.

According to the DOL FAQ (Questions 58 and 59), a small business may claim the exemption if an authorized officer of the business determines that one of the three factors are true:

  1. 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;  
  2. 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  
  3. 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.

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if all of these are true:

  • The employer employs fewer than 50 employees.
  • Leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
  • An authorized officer of the business has determined that at least one of the three conditions described above is satisfied.

Veterinary practices that determine they cannot provide paid leave based upon the exemption, must be prepared to demonstrate why and how the practice fits into one of the three categories detailed above.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

Health care provider exemption

The FAQs also address which employees may be excluded from the paid leave provisions because they fall under the exemption for “health care providers” in Question 56. The Secretary of Labor’s office has confirmed that the FFCRA definition of healthcare provider for purposes of the exemption is limited to those that provide and support human health care providers. Veterinarians are not included within definition of healthcare provider for the purposes of the exemption. The purpose for the exemption is to provide for a human healthcare workforce on the front lines of COVID-19 treating patients and maintaining patient safety. 

Enforcement

DOL issued a Field Assistance Bulletin describing the Department’s temporary non-enforcement policy. The bulletin indicates DOL will not bring enforcement actions against an employer for violations of FFCRA requirements within the first 30 days of enactment (March 18 through April 17, 2020), so long as the employer has made reasonable, good faith efforts to comply with the law. If an employer willfully violates FFCRA or fails to remedy a violation during this time, DOL has the right to take appropriate enforcement measures. Additionally, part of the good faith definition by DOL includes, that the employer must remedy any violations, including making all affected employees whole as soon as practicable. After April 17, 2020, DOL will fully enforce violations as appropriate and consistent with the law.

AVMA and DOL encourage employers to collaborate with their employees to find solutions that allow business to remain open while addressing employee’s concerns.