DOL’s Third Round of Q&As Clarifies COVID-19 Law Exemptions and More

Over the weekend, the U.S. Department of Labor (DOL) issued a third round of Families First Coronavirus Response Act (FFCRA) Questions and Answers aimed at helping employers administer emergency paid sick leave and expanded (paid) family medical leave (expanded FMLA) as part of FFCRA, which takes effect today, April 1, 2020. A temporary non-enforcement policy applies until April 17, 2020 for employers that make reasonable good faith efforts to comply with the law. Below we’ve outlined some of the DOL’s newest, critical guidance included in its third round of Q&As.

Small Business Exemption Clarified

Employers with under 50 employees, including religious and nonprofit organizations, may be exempt from the emergency paid sick leave and extended FMLA requirements for ONLY reason #5 (School and Childcare Closures). This means that employers with fewer than 50 employees – even those who can claim this exemption – are NOT exempt from providing emergency paid sick leave for reasons #1, 2, 3, 4 and 6 (i.e., the medical/family care related reasons for the leave). Qualifying reasons for leave under the act can be viewed here >

ACTION: How Do Small Businesses Claim This Exemption? The DOL clarified that, in order to claim this exemption, an authorized officer of the employer’s organization must determine and document if one of the following applies:

  • Providing expanded FMLA and emergency paid sick leave for reason #5 (school closures and child care unavailability) would cause the business’s expenses and financial obligations to exceed its revenues and cause the business to cease operating at a minimal capacity;
  • The employee’s absence would entail a substantial risk to the business’s financial health or operational capabilities because of specialized skills, knowledge of the business, or responsibilities, the employee possesses; or
  • There are insufficient workers who are able, willing, and qualified to perform the labor or services provided by the employee(s) requesting child-care leave, and these labor or services are needed for the business to operate at a minimal capacity.

ACTION: Small businesses should be communicating with their employees regarding the impact of their organization’s exempt or non-exempt status.

Additional Clarifying Guidance

Healthcare Providers and Emergency Responders Exemption
Employers of healthcare providers and emergency responders, as well as almost anyone who works with them, are exempt. See DOL’s Q&As 56-57 for more guidance > 

Employees Can Take No More Than 12 Weeks of FMLA (including expanded FMLA) – though there are scenarios in which an employee may be eligible for 14 weeks of leave and possibly more if local and state laws play a factor. See DOL’s Q&As 44-55 for more guidance >

Full-time and Part-time Employees are Now Defined, Affecting How You Pay Them See DOL’s Q&As 48-49 for guidance >

Restoration Relief for Small Employers Under 24 Employees
Employers with 24 or fewer employees can deny an employee’s return to the job so long as all four of the DOL’s hardship conditions are met. See the DOL’s Q&A 43 for the list of hardship conditions >

Our Mission of Service

Our team at North Risk Partners will continue to monitor regulatory updates and guidance related to the COVID-19 outbreak and send you information as it becomes available. We are here to help you through this and face the risk of this virus head on, which to us is about helping you proactively control what you can control with facts and evidence-based information. Thank you for continuing to trust us with your business and doing your part to help protect our communities by controlling the spread of COVID-19.


If you have questions related to this update, please contact your North Risk Partners advisor. Don’t have an advisor? No problem. We’ll help you find one.

This regulatory update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.