March 30, 2020
The USDOL has issued guidance clarifying when the small business exemption applies to exclude a small business from the leave provisions of the Families First Coronavirus Response Act (FCCRA), including both the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFMLA).
By way of reminder, the EPSL provides for up to 80 hours of paid sick leave time for the following reasons:
The EFMLA provides for paid FMLA leave for an employee due to a need to care for the employee’s child under 18 years of age if the child’s elementary or secondary school or place of care has been closed, or the childcare provider is unavailable due to a “public health emergency.”
When initially signed into law, both provisions permitted the USDOL to exempt small businesses with fewer than 50 employees under circumstances to be later set forth. The new guidance addresses these circumstances.
Pursuant to the recently released guidance, the exemption is available to employers with fewer than 50 employees, including religious or nonprofit organizations, if an authorized officer of the employer determines one of the following conditions applies:
Notably, the USDOL guidance provides that school closures/child care reasons for FFCRA leave (reason #5 for EPSL leave and the only reason EFMLA is available) are the only reasons for which this exemption is available (provided one of the above criteria is met). Thus, even if a smaller employer with fewer than 50 employees meets the criteria for this exemption, the small employer is not exempt from providing EPSL for reasons #1, 2, 3, 4 and 6 (i.e., the medical/family care related reasons for EPSL).