by Alexandra Saddik
The Families First Coronavirus Response Act (FFCRA) officially took effect April 1; on that same day, the Department of Labor released regulations that clarifies several aspects of the law, including the small business exemption that the Department of Labor issued preliminary guidance on.
Under the new Code of Federal Regulations § 826.40(b), small businesses with fewer than 50 employees are exempt from providing leave under the FFCRA “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” This does not change the business’s obligations under the FFCRA to post notices regarding the new leaves employees have a right to. The updated posters, which should be posted at worksites and sent out to employees, can be found at https://www.dol.gov/agencies/whd/pandemic.
To qualify for the small business exemption, the small business must establish that: (1) the requested leave would force the business to cease operating at a minimal capacity due to expenses and financial obligations exceeding revenues; (2) absence of the employees requesting leave constitute “a substantial risk to the financial health or operational capabilities of the business” because of the employees’ skills, knowledge, or responsibilities; or (3) there would be insufficient workers that are able, willing, qualified, and available to perform the required labor or services for the business to operate at a minimum capacity.
To elect this exemption, all the small business must do is document that an authorized officer of the business has determined that it is unable to provide leave under the FFCRA for one of the reasons stated above. As with the preliminary guidance, the regulation clearly indicates that a business should not send any documentation to the Department of Labor.
Additionally, on March 31, 2020, Santa Clara County, San Francisco, Alameda County, Berkeley, San Mateo County, and Marin County extended their existing shelter-in-place orders to May 3. Apart from the extension, these counties also modified the orders by adjusting the list of essential businesses, requiring even essential businesses to maximize remote work and scale down nonessential operations, and requiring essential businesses to adopt, implement, and post a social distancing protocol at their worksites by 11:59 PM April 2.
The social distancing protocol encompasses guidelines recommended by the CDC; those guidelines can be found at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. Additionally, each county provided a checklist that businesses can use to form a social distancing protocol tailored to the needs of the business. The health orders and social distancing protocol checklists can be found at the following links:
Contra Costa County: https://www.contracosta.ca.gov/CivicAlerts.aspx?AID=2180
Alameda County: http://www.acphd.org/2019-ncov.aspx
San Mateo County: https://www.smchealth.org/sites/main/files/file-attachments/033120_english.pdf?1585788430
Santa Clara County: https://www.sccgov.org/sites/phd/DiseaseInformation/novel-coronavirus/Pages/home.aspx
San Francisco: https://www.sfdph.org/dph/alerts/files/HealthOfficerOrder-C19-07b-ShelterInPlace-03312020.pdf
Marin County: https://www.marincounty.org/main/county-press-releases/press-releases/2020/hhs-covid-shelterinplace2-033120
The legislative and regulatory landscape surrounding COVID-19 is often changing on an hourly basis. Given the fluidity of this situation, we caution you to consult with legal counsel when making employment and business decisions during this unprecedented time. Ferber Law is constantly checking for updates surrounding COVID-19 and remains available to assist with your needs. Stay well.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.