FFCRA Exemption Childcare: How to Avoid Costly Fines

Closures of camps and schools due to COVID-19 may be just one of many reasons your employees are asking to take more time off than ever. Certainly, you want to be as flexible as possible, but you also have a business to run. It’s essential that you have a firm handle on when you are and are not required to compensate staff for NOT working.

If your staff claim that you required to pay them for time off due to the Families First Coronavirus Response Act (FFCRA), this is not entirely true. Before you approve the PTO, nail down your policy options – you might not have to cover the pay. But fail to meet the U.S. Department of Labor (DOL) requirements and you’ll be facing penalties.

Effective April through December 2020, the FFCRA requires certain employers to provide their staff with COVID-19 paid sick time and expanded family and medical leave if they meet certain criteria. The DOL can and will enforce FFCRA lack of compliance and penalize employers in violation, which could cost you must more than just paying for the time in the first place.

Your Size or Status Can Allow Denying Paid Leave

As a healthcare practice, you could compliantly deny an employee paid sick leave or expanded family and medical leave due to school closings or childcare unavailability using the FFCRA. When determining your exemption reason, consider two reasons:

As a healthcare practice, you could compliantly deny an employee’s paid sick leave or expanded family and medical leave using the FFCRA.

Healthcare Provider Exemption: The DOL has defined “health care providers” broadly to include any individual employed at the following locations:
- Doctor’s office
- Hospital
- Healthcare center
- Clinic
- Postsecondary educational institution offering health care instruction
- Medical school
- Local health department or agency
- Nursing facility
- Retirement facility
- Nursing home
- Home healthcare provider
- Any facility that performs laboratory or medical testing
- Pharmacy
- Any similar institution, employer or entity.

Small-Business Exemption: If your practice has fewer than 50 employees, you can deny coverage, but you will need to meet additional criteria.

Further Criteria for Size Based Exemption

To use the fewer than 50 employees rule to deny coverage, you must meet additional criteria. The temporary rule published by the DOL indicates that you will need to prove at least one of three criteria, as outlined below:

Volume Loss: Such leave would cause your expenses and financial obligations to exceed available business revenue and cause you to cease operating at a minimal capacity;
Financial Risk: The absence of the employee requesting such leave would pose a substantial risk to the financial health or operational capacity your business because of their specialized skills, knowledge of the business, or responsibilities; or
Unavailable Replacement:
- A lack of other workers who are able, willing, and qualified, and who will be available at the time and place needed
- A lack of other workers to perform the labor or services the employee provides
- The duties performed by the staff member are needed for you to operate at a minimal capacity.

Regardless of the exemption you choose, you must document the facts and circumstances that meet the criteria and justify the denial, and maintain the records in your files. Should the staff member complain to the DOL and you get audited, your documentation will be essential to your ability to prove compliance.

Source: DOL Paid Leave Under FFCRA Temporary Rule

If you are like most practices, you have a ton of additional employee-related compliance questions such as can you make employees use PTO if they miss work due to COVID-19, how high does an employee’s temperature need to be to send them home, and more. Get all your COVID-19 employment policy questions answered during the expert-led online training “Stop Practice Penalties, Comply with New COVID-19 Employment Laws,” by healthcare and employment attorney, Kelly Holden, Esq.