Updates in the Law
On March 28, 2020, the Department of Labor (“DOL”) issued guidance regarding the hardship exemption for small businesses subject to the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act “(EFMLEA”). While we are still awaiting DOL issuance of formal regulations for the hardship exemption, this new guidance at least provides employers with some direction clarifying when the exemption applies. Notably, the guidance only provides for a hardship exemption when employees seek leave because their child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. It remains to be seen whether the DOL will extend a small business exemption to leave requested for the other qualifying reasons under EPSLA.
The DOL’s new guidance is reproduced below.
Question 58: 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 paid sick leave and 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:
Question 59: 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:
The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.