Face Challenges Confidently


Monday, April 20th, 2020


Immediately following passage of the Families First Coronavirus Response Act (“FFCRA”), employment attorneys across the country began receiving telephone calls about two exemptions mentioned (but not fully explained) in the statute—the small business exemption and the health care provider exclusion. For two weeks, businesses and attorneys alike were left wondering how these exemptions would apply and if, in fact, entire businesses could “opt out” of providing paid leave.

However, the Department of Labor’s regulations, issued on April 1, 2020 explained both exemptions in more detail. And, reading those regulations clarified one thing—they are not nearly as broad as they initially appeared.

Small Business Exemption

An employer with fewer than 50 employees may be exempt from providing employees with emergency paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) or expanded family leave under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), but only for one reason—when an employee needs leave to care for a minor child whose school or place of care closed or whose regular child care provider is unavailable due to COVID-19 concerns. In addition, in order to claim the exemption, providing the requested leave must jeopardize the viability of the small business as a going concern.

More specifically, an authorized officer of the business must determine (and document): (1) the provision of paid sick leave or expanded family 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 minimal capacity; (2) the absence of the employee requesting paid sick leave or expanded family leave would entail a substantial risk to the financial health or operational capabilities of the small business because of the individual employee’s 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 requesting paid sick leave or expanded family leave, and these labors or services are needed for the small business to operate at a minimal capacity.

In addition, the decision to claim this exemption must be made on an employee-by-employee basis; it cannot be claimed for an entire organization.

Health Care Provider Exclusion

Employers of an employee who is a health care provider or emergency responder may elect to exclude that employee from the paid leave provisions of the FFCRA. The DOL defined “health care provider” to include anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary education institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.

To minimize the spread of the COVID-19 virus, however, the DOL encourages employers to be “judicious when using the definition to exclude health care providers” from the paid leave provisions of the FFCRA. Further, the DOL cautions employers to make the determination to exclude health care providers on a case-by-case basis. It is not a wholesale exemption for a business.

In addition, an employer’s exercise of the option to exclude health care providers from the EPSLA or EFMLEA does not authorize an employer to prevent an employee who is a health care provider or emergency responder from taking earned or accrued leave in accordance with established employer policies. Further, due to concerns regarding the spread of COVID-19, it may be unwise to deny an employee’s request for leave if the employee has been diagnosed with COVID-19, has been advised by a health care provider to quarantine, or is experiencing symptoms of COVID-19.

In short, claiming either exemption requires analysis of the specific facts and circumstances of an individual employee’s request. And, as always, employers should document their decisions and the reasons for such decisions. Employers who are thinking about claiming an exemption, or wondering whether they might be able to claim an exemption should call employment counsel for advice.

Allison Davis, J.D., is a member of the employment group at Brown & Fortunato, P.C. She routinely assists clients in the health care industry on matters that involve employment law. The Employment Law team at Brown & Fortunato can be reached at 806-345-6300. Or contact Allison directly at adavis@bf-law.com.