New Guidance for Exemptions from Coronavirus Paid Leave Act Provisions
On March 18, 2020, the Families First Coronavirus Response Act (the “Act”) was signed into law which provided certain employees with emergency paid sick leave (EPSL) and emergency Family and Medical Leave Act (EFMLA) leave beginning April 1, 2020. The Act indicated that businesses with less than 50 employees could be exempt from certain provisions of the new Act, under certain circumstances, but the details were left to be decided later. Over the weekend, the United States Department of Labor issued such guidance.
Employers with less than 50 employees are exempt from the portions of the EPSL and EFMLA requiring paid leave to allow the employee to care for their son or daughter due to a school or day care closure, if doing so would jeopardize the viability of the small business as a going concern. Under the DOL guidance, a small business can claim this exemption if an authorized officer of the business has determined that: 1) the provision of paid leave under the Act would result in the small business’s expenses exceeding available revenue and cause the business to cease operating at a minimal capacity, 2) the absence of the employee requesting paid leave due to the school or day care closure would entail a substantial risk to the financial health or operational capabilities of the business due to such employee’s specialized skills, knowledge of the business or responsibilities; or 3) there are not sufficient workers who are able, willing and qualified, and who would be available at the time and place needed, to perform the services provided by the employee requesting the paid leave and the services are needed to operate the small business at a minimal capacity.
Employers who anticipate needing to use such an exemption in response to an employee’s request for paid leave will need to be sure to document one of the three reasons for an exemption listed here in support of the employer’s position. Of course, as always, employers and employees should collaborate to reach mutually agreeable solutions for leave, if such accommodations can be made.