The Department of Labor (DOL) has issued its rule clarifying the exemption for business with fewer than 50 employees and relieving them of the burden of paying the Paid Sick Leave and Expanded Family and Medical Leave under the Family First Coronavirus Relief Act.
Such a small business is exempted when the imposition of these requirements would jeopardize the viability of the business as a going concern.
A small business under this section is entitled to this exemption if an authorized officer of the business has determined that:
(i) The leave requested 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;
(ii) The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
(iii) 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 leave and these labor or services are needed for the small business to operate at a minimal capacity.
This exemption is self-executing, but the small business must be able to demonstrate with documentation that it met the criteria above if questioned. Such records are to be retained by the small business.
Regardless of whether a small business chooses to exempt one or more employees, the small business is still required to post the notice required by the Act.