The U.S. Department of Labor ("DOL") has published guidance anticipating its forthcoming regulations regarding exemption from Emergency Paid Sick Leave and Expanded Paid Family and Medical Leave requirements for businesses with fewer than fifty employees.
Under the guidance, an employer with fewer than fifty employees may claim exemption from the requirements if they "would jeopardize the viability of the small business as a going concern." To establish exempt status, an authorized officer of the business must determine that:
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;
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
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.
The DOL will not require employers to submit document supporting the exemption but will require documentation of the authorized officer's determination.
There is risk in making this decision. First, the guidance is not yet a regulation and could change (especially if there is a change of administrations after the presidential election, which will occur well within the time employees could bring claims). Second, it remains to be seen how and when an employer's determination can be second-guessed. Failure to provide leave if required can result in civil damages and penalties under the FFCRA and its underlying laws. As always, we recommend consulting with counsel when making important decisions under state and federal employment laws.
The DOL's guidance, which is changing often, can be found here. The law and its benefit requirements take effect on Wednesday, April 1, 2020.