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April 2, 2020
A few days ago the Department
of Labor released a series of questions and answers Emergency paid sick leave
and Emergency Paid Family Leave. Please find below two questions and
answers dealing with the small business exemption.
When does the small business
exemption apply to exclude a small business from the provisions of the
Emergency Paid Sick Leave Act and Emergency Family and Medical Leave
Expansion Act?
An employer, including a religious or nonprofit organization,
with fewer than 50 employees (small business) is exempt from providing
(a) paid sick leave due to school or place of care closures or
child care provider unavailability for COVID-19 related reasons and
(b) expanded family and medical leave due to school or place of
care closures or child care provider unavailability for COVID-19 related
reasons when doing so would jeopardize the viability of the small business as
a going concern.
A small business may claim this exemption if an authorized
officer of the business has determined that:
* The provision of paid sick leave or expanded family and
medical leave would result in the small business's expenses and financial
obligations exceeding available business revenues and cause the small
business to cease operating at a minimal capacity;
* The absence of the employee or employees requesting paid sick
leave or expanded family and medical leave would entail a substantial risk to
the financial health or operational capabilities of the small business
because of their specialized skills, knowledge of the business, or
responsibilities; or
* There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to perform
the labor or services provided by the employee or employees requesting paid
sick leave or expanded family and medical leave, and these labor or services
are needed for the small business to operate at a minimal capacity.
If I am a small business with
fewer than 50 employees, am I exempt from the requirements to provide paid
sick leave or expanded family and medical leave?
A small business is exempt from certain paid sick leave and
expanded family and medical leave requirements if providing an employee such
leave would jeopardize the viability of the business as a going concern. This
means a small business is exempt from mandated paid sick leave or expanded
family and medical leave requirements only if the:
·
employer employs fewer than 50 employees;
·
leave is requested because the child's school
or place of care is closed, or child care provider is unavailable, due to COVID-19
related reasons; and
·
an authorized officer of the business has
determined that at least one of the three conditions described in Question
above is satisfied.
The Department encourages employers and employees to collaborate
to reach the best solution for maintaining the business and ensuring employee
safety.
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