Q: We are a small business with under 50 employees. Does that mean we can opt out of providing paid leave under the FFCRA? How is a small business exemption established, obtained?

The Families First Coronavirus Response Act's emergency paid sick leave and expanded paid family and medical leave requirements apply to certain public employers and private employers with fewer than 500 employees.

Small businesses with less than 50 employees can claim an exemption if complying with the law jeopardizes the viability of the business as a going concern.

However, this exemption is only available for emergency paid leave and expanded FMLA leave when the employee is absent because a child they care for is home due to a COVID-19 related school or child care facility closing. 

There is no small business exemption for paid sick leave under the provisions of the FFCRA related to employee health issues or to care for another person with health issues.

The U.S. Department of Labor has no formal documentation or submittal process to seek approval for this exemption.

As of now, it appears that an employer would advise the employee that paid leave is not available based on the business meeting the law's criteria for exemption, document the reasons internally for future reference and presentation if challenged, either informally in discussion with the employee, or in an administrative or court proceeding.

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