The Department of Labor (“DOL”) has the authority to exempt small businesses from providing paid leave benefits under the Families First Coronavirus Response Act if it “would jeopardize the viability of the business as a going concern.” This simple three-step guide will break down whether or not you qualify for the exemption.
1. Are You a Small Business?
An employer, including a religious or nonprofit organization, with fewer than 50 employees is a small business.
2. What is the Reason Your Employee is Taking Leave?
If your employee is seeking paid leave for one of the two following situations:
If your employee is not seeking paid leave for these TWO situations, then, as of now, your business will not be exempt.
3. Can You Prove Your Business Would be in Jeopardy?
An authorized officer of the business must determine that at least one of the following three conditions are met.
If you deny an employee's request for paid leave pursuant to the small business exemption, you must document your authorized officer's determination that the criteria for that exemption (as stated above) are satisfied and retain such documentation for four years. You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family medical leave, but rather should retain such records for your own files.
Disclaimer: Laws, regulations, and guidance on matters related to COVID-19 change rapidly. Please contact your Payne & Fears attorney for current guidance.