Last Updated on April 2, 2020

Clarifications of Exemption Process for Employers Under 50

On April 1, 2020; the Department of Labor (DOL) released clarifications regarding the Families First Coronavirus Response Act. One of the clarifications related to the ability of employers with fewer than 50 employees to be exempt from the Act. Under the Act, these employers have to be able to show that they meet one of the three following criteria to obtain the exemption:

• 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.

How to Take the Exemption

In its clarifications, the DOL also stated that if a company decides not to pay the Paid Sick Leave or the Emergency Leave to an employee the employer must document the facts and circumstances that meet the criteria above to justify the denial. The employer should not send the material or documentation to the DOL, but rather retain the records for their own files.

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