For small employers (those who employ less than 50 employees), the regulation provides a mechanism to elect the exemption provided for in the Families First Act. The Act provides an exemption for small employers where the imposition of the Act’s requirements would impose an undue hardship on the employer. The regulation sets out three criteria for determining whether the exemption applies:
- The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee would cause substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers to perform the labor or services provided by the employee, and these labor or services are needed for the small business to operate at a minimal capacity
The regulation thus seems to contemplate that the small employer would invoke the exemption as leaves are requested. Small employers are still required to post the notice required by the Act. The small employer need not seek the exemption from the Department of Labor or submit any documentation to the Department of Labor. Instead, the employer must document the determination pursuant to the criteria in the regulation, and maintain those records in its files.
The regulations provide other guidance on details of the Families First Act. AMM will continue to provide guidance on the requirements of the Families First Act and the impact of COVID-19 as they become available.