What Criteria Determine If I am Exempt from the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?
One of the most frequent questions that we have received since the passing of the Families First Coronavirus Response Act (FFCRA) is how can an employer become exempt from the Act. Under the Act, employers with fewer than 50 employees are exempt from the Act if complying with the Act would jeopardize the company’s ability as a going concern. If an employer believed this was the case, they must petition the Department of Labor (DOL) for the exemption.
The initial bill was somewhat vague as to exactly what an employer has to do to prove their viability as a going concern was in danger. Recently the DOL released some clarification around this issue. In order to claim the exemption, an authorized officer of the employer must determine that one of the following three criteria have been met:
- The provision of the paid sick leave or expanded family and medical leave would result in the employer’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 employer because of their specialized skills, knowledge of the business, or responsibilities
- 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 an employer under 50 employees meets one of the conditions above and wishes to obtain an exemption, they should contact the Department Labor to request their exemption.
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