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It’s not as large as you’d think.

One of my favorite workplace advice columnists, Karla Miller of The Washington Post, had a good one yesterday about an employee who was having to bring her 10-year-old daughter to work. (This was because the employee was a single mom and her daughter’s school was closed because of COVID-19.)

The daughter had a tantrum at the office one day, which inspired the boss to talk to the mother-employee about her “options,” if you know what I mean and I think you do.

The employee said that she asked her boss about taking leave under the Families First Coronavirus Response Act but that the boss responded that the company wasn’t covered because it had only four employees.

Too bad. I guess she’ll have to file for unemployment, then.

Oh yeah! Private sector employers with 1-499 employees are covered by the FFCRA. (Most public sector employers are covered, regardless of the number of employees.) I thought Karla or a commenter would point this out, but as of the time I wrote this blog post, they hadn’t. They may have assumed that the employer qualified for the “small-employer” exemption from the FFCRA, which is available to employers with fewer than 50 employees. (Since the FFCRA already applies to small employers, I’ll call this the “teeny-tiny employer exemption.”)

This teeny-tiny employer exemption is pretty teeny-tiny:

  • It applies only to FFCRA leave (both expanded Family and Medical Leave and “Reason No. 5” under the expanded Paid Sick Leave Act) related to care of a son or daughter because of a school or child care closing, or unavailability of a child care provider, because of COVID-19. There is no exemption from the other provisions of the Emergency Paid Sick Leave Act (for example, the requirement to provide paid leave to an employee who is having to stay home because of a quarantine or isolation order from a public health authority).

Even if the leave is needed for a qualifying reason, the exemption is not available unless an authorized officer of the employer certifies in writing that one of the following conditions exists:

  • Allowing leave would cause the company’s expenses and financial obligations “to exceed available business revenues and cause the small business to cease operating at a minimal capacity”;
  • The absence of the employee requesting leave would put the company’s operational or financial health at risk because of the employee’s “specialized skills, knowledge of the business, or responsibilities”; or
  • There are not enough employees with the requisite skills who are available to perform the work that the employee performs, and the employee’s “labor or services are needed for the small business to operate at a minimal capacity.”

NOTE TO EMPLOYERS SEEKING THIS EXEMPTION: Please do not send your small-employer documentation to the U.S. Department of Labor. The DOL doesn’t want it. How do I know that? Because the DOL says, “Please do not send us your documentation related to the small-employer exemption,” every chance it gets. (It’s in the FFCRA regulations at section 826.40(b), and also in FAQ No. 4.) Just keep your documentation in a safe place so that you can easily produce it if you are the subject of an investigation.

Now, let’s go back to Karla’s column and see whether the letter writer’s employer really is exempt from the FFCRA.

  • The employer has fewer than 50 employees. That’s good.
  • The employee is needed to care for her hot-tempered daughter because the daughter’s school is closed for a COVID-19-related reason. That’s good.
  • We don’t know what position the employee holds, but she says she has to answer the phone, and accept mail and deliveries. This sounds to me like some type of non-exempt clerical position that doesn’t require much in the way of specialized expertise. That’s maybe not so good.

Assuming I’m right about the employee’s job duties,

  • Would giving her paid leave cause the employer’s expenses to exceed revenues? We can’t say for sure, but my guess is no. She’s probably not highly compensated, and the employer would be eligible for a 100 percent payroll tax credit if it granted the leave.
  • Would her absence put the company at risk because of her “specialized skills, knowledge of the business, or responsibilities”? Based on her description of her job duties, I’m thinking probably not.
  • Is there a shortage of workers in the area who could perform her tasks? If the employer is in the D.C. area, I seriously doubt it. On the other hand, if the employer is in Ten Sleep, Wyoming, then maybe so.

My feeling is that the employer might qualify for the exemption in some circumstances, but maybe not with respect to the employee who wrote to Karla. Which means that the employee could be entitled to paid leave under the FFCRA.

(Should we tell Karla?)

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.

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