Labor and Employment
The Small Business Exemption for the Emergency Paid Sick Leave Act and the FMLA Expansion Act
April 8, 2020
The Department of Labor (DOL) has provided us with regulations governing the application of the small business exemption for both the Emergency Family and Medical Leave Expansion Act (FMLA Expansion Act) and the Emergency Paid Sick Leave Act (Paid Sick Leave Act). Under both enactments, employers with fewer than 50 employees may be exempt, but only if they meet the specific criteria established by the DOL. The DOL’s newly-crafted regulations require small employers to meet one of the following three criteria for the exemption:
- The leave request would result in the small business’s expenses and financial obligations exceeding available business revenues and would cause the small business to cease operating at a minimal capacity; or
- The absence of the employee or employees requesting the leave would entail a substantial risk to the financial health or operational capabilities of the business because of the employees’ specialized skill, 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 needed for the small business to operate at a minimal capacity.
It will be very important for an employer relying on this exemption to fully document its bases for invoking the exemption. Employers should remember that employees who are denied leave under these laws may file a claim with the DOL challenging the decision. And if the exemption is used, employers will want to review and update documentation supporting its use on a regular basis. It may apply one week, but not the next, and employers will need to be ready to address that fact in their documentation.
Click here for more information on the Paid Leave Under the Families First Coronavirus Response Act.
If you have questions about this, please contact Chris M. Mason or any other attorney in our Labor and Employment practice.
ABOUT THE AUTHOR
Chris M. Mason | Read Bio
About Jennings, Strouss & Salmon, P.L.C.
For over 75 years, Jennings Strouss has been dedicated to providing clients with strategic legal guidance to help them seize every opportunity. The firm is well-known for its rich heritage, commitment to community, and long-lasting relationships. We have a deep understanding of business and law. When you work with us, you’ll have a team of legal experts who are dedicated to your vision of success.
Through our offices in Phoenix, Peoria, and Tucson, Arizona, and Washington, D.C., we leverage resources both regionally and nationally to serve our expanding client base. Jennings Strouss is deeply rooted in each of our locations’ legal and business communities, and especially instrumental in helping shape the dynamic growth of Arizona and many of its institutions. The firm promotes a pragmatic, results-oriented approach, coupled with a healthy, well-managed, and friendly atmosphere of collaboration.
Our primary areas of practice include advertising and media law; agribusiness; automobile dealership law; bankruptcy, restructuring, and creditors’ rights; construction; corporate and securities; eminent domain and condemnation; employee benefits and pensions; energy; estate planning and probate; family law and domestic relations; finance; healthcare; insurance defense; intellectual property; labor and employment; legal ethics; litigation; medical malpractice; professional liability defense; real estate; surety and fidelity; and tax.
For additional information, please visit www.jsslaw.com and follow us on LinkedIn, Facebook, and Twitter.
The Law Firm Alliance
Jennings, Strouss & Salmon is honored to be a member of The Law Firm Alliance (LFA), a strategic
Read More
Read More
