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Labor Department says employers with fewer than 50 employees may be exempt from new law

Dental offices must meet certain criteria to qualify

April 01, 2020

By Jennifer Garvin

Washington — Employers with fewer than 50 employees, including dental practices, may be exempt from a provision in the Families First Coronavirus Response Act that requires them to provide emergency paid sick leave and expanded medical leave to employees in certain COVID-19 circumstances, the U.S. Department of Labor said April 1.

This exemption is something the ADA has advocated for since the Families First Coronavirus Response Act was introduced in mid-March. The Association and other dental organizations sent a letter to Labor making that request.

The legislation, which became law March 18 but is effective from April 1-Dec. 31, states that employers with under 500 employees could be required to pay two weeks of sick leave to employees in certain COVID-19 circumstances or pay for up to 10 weeks of leave if the employee has a child whose school or day care is closed due to COVID-19.

In its April 1 temporary rule announcement, the agency said that in order for small employers with less than 50 employees to be exempt the businesses will need to meet one of three criteria showing that “providing the leave” will be a burden on the business.

The criteria, which are detailed on Pages 39-40 of the temporary rule, are:

• The leave would cause “the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity.”
• The employee or employees’ absence or leave request “would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business or responsibilities.”
• The small 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 or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.”

On an April 1 conference call with the ADA and other small business stakeholders, the Labor Department said that if the business meets one of those three criteria it should document that it does and retain that documentation on file but added that the small business would not be required to send that information to the agency. Instead the business is asked to keep the documentation on file for four years in case the department investigates.

This means that dental office owners are not required to pay paid sick leave or Family Medical Leave Act leave if the employee has a child whose school or day care is closed due to COVID-19, as long as they meet at least one of the criteria above.

Labor has additional information for employers and employees on COVID-19.

The ADA will continue to keep the dental community informed as the Association learns more from the Department of Labor.

Visit ADA.org/virus for the latest information on COVID-19.