On Saturday, March 28, the U.S. Department of Labor updated its Families First Coronavirus Response Act: Questions and Answers.  While this is still not the regulations that we are all waiting for, it does provide compliance assistance to employers until the regulations are issued. I’ll write about more issues later, but probably the single most question I get asked is related to whether a small business is exempt from the Families First Coronavirus Response Act (FFCRA). Here is the DOL’s current position (and what I expect the regulations will support):

A small business (less than 50 employees) is exempt from the FFCRA when “doing so would jeopardize the viability of the small business as a going concern”. Sounds subjective right? Well, here’s where the regs will come in handy. Until then, the DOL has stated that a small business is exempt if the following conditions are met:

  1. It employs less than 50 employees;
  2. Leave is requested due to school/day care closure due to COVID-19 reasons; and
  3. An authorized officer of the business has determined that one of the following 3 conditions are met:
    1. The application of the FFCRA would result in expenses and financial obligations exceeding available business revenues and cause the business to cease operating at a minimal capacity;
    2. The absence of of employee(s) requesting leave 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
    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(s) requesting leave, and these labor or services are needed for the business to operate at a minimal capacity.

So, for now, if you are a small employer and can answer yes to the above three criteria, until we get better guidance from the DOL, the President/CFO/CEO should document that the above conditions are met prior to denying leave to employees under the FFCRA.

Additionally, keep in mind that if you determine you are exempt for one, you are exempt for all. It is a business exemption – not an individual exemption. Thus, if you determine your business is exempt, you also cannot take advantage of the tax credits. It’s the you can’t-have-your-cake-and-eat-it-too theory.

And finally, if you do continue business as usual, keep in mind that you must still follow Governor Walz’s stay-at-home order until April 10, and those that can work remotely, must.

Those that cannot work remotely, should be given social distance opportunities (i.e. skip the handshakes, open up new spaces for breaks), PPE where appropriate, sanitized work space, etc. however possible. Per the EEOC’s guidance, yes, you can take temperatures of those reporting to work during a pandemic, so long as you follow appropriate guidelines.