FFCRA Exemptions Guidance

The Department of Labor has issued guidance about some limited exemptions...

Follow-up on the new Family First Coronavirus Response Act for small businesses...


In a previous post, I briefly discussed a new rule impacting small businesses with fewer than 500 employees. The Family First Coronavirus Response Act (FFCRA) established a requirement for paid sick leave related to COVID-19. There are effectively three distinct types of leave contemplated by this Act:


  1. Paid sick leave for TWO WEEKS (80 hours) at an employee’s full rate if the employee is quarantined or experiencing COVID-19 symptoms. [NO EXEMPTION - Read on]

  2. Paid sick leave for TWO WEEKS (80 hours) at 2/3rds of an employee’s full rate if the employee is unable to work because they are caring for someone with COVID-19 or because their child’s daycare or school is closed due to COVID-19. [PARTIAL EXEMPTION - Read on]

  3. Expanded paid family and medical leave for up to an ADDITIONAL TEN WEEKS at 2/3rds of an employee’s full rate if the employee is unable to work because their child’s school or daycare is closed due to COVID-19. [FULL EXEMPTION - Read on]

The Department of Labor has now clarified that there is an exemption for some small businesses with under 50 employees. However, this exemption ONLY relates to requests for leave made by an employee because of the unavailability of child care due to COVID-19 (their child’s school or daycare closed). If your employee is requesting leave due to personal illness or because they need to care for someone who is ill, there is no clear exemption and you will likely need to provide paid leave.

To qualify for this exemption, you must be able to show either that:


  1. the cost of paid leave would exceed your business revenue and effectively shut you down,

  2. the employee requesting leave has specialized knowledge or skill and their absence would create a substantial risk of business failure, or

  3. there aren’t enough available workers to replace your employee(s) in order to keep the business running.

Although not an exemption from all obligations, this should serve as some relief to small businesses during these difficult times.

Read the full guidance at the Department of Labor website.

James Legal PLLC,  PO Box 640,  Barboursville, WV  25504    304-504-7675
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