US Department of Labor’s Temporary Regulations Small Business Hardship Exemption

A company with less than 50 employees may request a hardship exemption from providing sick leave and emergency-FMLA under the Families First Act (FFCRA). The Department of Labor has issued temporary regulations concerning a hardship exemption as follows:

A small employer is exempt from the requirement to provide leave under the FFCRA when:

1. Such leave would cause the employer’s expenses and financial obligations to exceed available business revenue and because the employer to cease operating at a minimal capacity
2. The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of their specialized skills, knowledge of the business, or responsibilities or
3. The employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee (s) requesting leave provide, and such labor or services are needed for the employer to operate in a minimal capacity

For reasons 1, 2, and 3, the employer may deny leave only to those otherwise eligible employees whose absence would cause the employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevented from operating at minimum capacity.