Client Alert: Exemptions to FMLA+ and Paid Sick Leave for Small Employers

On Saturday evening, March 28, the Department of Labor (DOL) provided some additional guidance for employers, including the following specific information for small businesses:

Qualified businesses are exempt from the FMLA+ and from one provision of Emergency Paid Sick Leave, but not all of the provisions. Specifically, the provisions included in the exemption center around those allowing leave for childcare in the event that a child’s school or place of care is closed.

Which businesses are exempt?

The following businesses may qualify for the exemption:

1. Employer employs fewer than 50 employees;
2. Leave is requested because the child’s school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons; and
3. An authorized officer of the business has determined that at least one of the three conditions described below is satisfied.

Conditions (must satisfy at least one):

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
2. 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 small business because of their specialized skills, knowledge of the business, or responsibilities; or
3. 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 a business is a qualifying business and satisfies as least one of the foregoing conditions, from which provisions are a qualifying business exempt?

Small Businesses May Be Exempt from FMLA+, and Emergency Paid Sick Leave #5 (for School Closures/Childcare) but NOT from other Emergency Paid Sick Leave Reasons 1, 2, 3, 4 or 6.

FMLA+. The FMLA+ provisions allow eligible employees to take up to 12 weeks of FMLA leave for “a qualifying need related to a public health emergency.” “Qualifying need” is limited to situations in which an employee is unable to work (or telework) to care for a minor child if the child’s school or place of child care has been closed or is unavailable due to a public health emergency.

Emergency Paid Sick Leave. Emergency Paid Sick Leave #5 required employers to provide paid sick leave to an employee who is unable to work or telework because, due to and related to COVID-19, the employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable.

These are the ONLY reasons for which this exemption is available (if one of the conditions is met). Therefore, smaller employers with fewer than 50 employees are NOT exempt from providing Emergency Paid Sick Leave for the remaining reasons #1, 2, 3, 4 and 6 (i.e., the medical/family care related reasons for Emergency Paid Sick Leave).

We know the federal and state response to COVID-19 will significantly intersect with your businesses. We are monitoring both federal and state bills and administrative guidance closely and will do our best to keep you informed during these trying times. Meanwhile, if you have any questions on these new regulations, please contact Jennifer Weaver or your Manning Fulton relationship attorney.