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Advocacy Update: Temporary Dept. of Labor Ruling Issued

As previously reported here, the AAO joined the ADA and other dental organizations on a letter asking the Secretary of Labor to exempt small businesses (under 50 employees) from the new emergency paid sick leave provisions in the recently-passed Families First Coronavirus Response Act.  Under the Act, which became law on March 18 (effective April 1, 2020 until December 31, 2020), employers with under 500 employees could be required to pay for two weeks of sick leave for employees under certain circumstances, or pay for up to 10 weeks of sick leave for an employee whose child is required to miss day care or school because of a COVID-19 closure.

In a temporary rule announced by the Department of Labor on April 1 (which can be viewed here), the Secretary of Labor clarified that employers with less than 50 employees may be exempt from the sick leave requirements if they meet one of three conditions:

  1. granting such sick 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;”
  2. granting such sick leave 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;” 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 or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.”

The Labor Department further clarified on an April 1 conference call that if an employer falls under one of these criteria, it should create, and retain on file for four years, documentation demonstrating that it falls under the criteria (though the employer is not required to submit this documentation to the Department of Labor).

The AAO welcomes the Labor Department’s announcement and acceptance of the policy arguments made by the AAO and other dental organizations.  The AAO, along with its team of federal lobbyists, will continue to monitor coronavirus-related developments and advocate on behalf of its members.