By Sharon Stiller, Rachel Gold and Joanna Topping
FEDERAL PAID LEAVE LAW NOW IN EFFECT
DOL ISSUES GUIDANCE ON EXEMPTIONS
APRIL 1st, WAS THE START OF THE NEW EMERGENCY FEDERAL LEAVE LAW.
We gave you the basics last week:
- The Federal Paid Leave Law requires all employers with fewer than 500 employees to provide up to 80 hours of paid sick leave and up to an additional 10 weeks of paid FMLA to employees who have minor children out of school.
- It covers leave taken for COVID-19 related reasons (including sickness and childcare for COVD related reasons) between April 1 and December 31, 2020.
The law also provides for exemption for some businesses with fewer than 50 employees.
While regulations have yet to be implemented, yesterday USDOL issued a helpful guidance. The FAQs shed some light on what the exemption means and how it will be handled.
First, there is no exemption from the requirement of paid leave for 10 days under qualifying circumstances. This exemption only applies to leave- either Paid Sick Leave or the Expanded FMLA – that is taken to care for a minor child. You are still obligated to pay for leave for all other purposes.
Second, the exemption only applies to employers for whom offering the leave would “jeopardize the viability of the small business”.
To claim this exemption an authorized officer of the business has to 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.
There is no guidance on whether an application will be required or how to apply for an exemption, if DOL will later require an application process. The law is enforced as any Fair Labor Standards Act case, which means that an impacted employee can file a complaint either with USDOL Wage and Hour Division, or in court. The penalties could include damages amounting to twice the actual wages owed, plus attorneys’ fees. It may turn out that the exemption is only a defense to a prosecution; but precisely how it will be treated remains to be seen.
That said, however, the DOL has described a period “no enforcement” until April 17th. It also emphasized that employers and employees should collaborate to reach the best solution for maintaining the business and ensuring employee safety.
If you have any questions about your rights and responsibilities or your employees’ requests, please let us know. As always, we will keep you advised of the developments.
Sharon P. Stiller, Esq.
160 Linden Oaks, Suite E
Rochester, New York 14625
Rachel Demarest Gold, Esq.
3 Dakota Drive, Suite 300
Lake Success, New York 11042
Joanna M. Topping, Esq.
81 Main Street, Suite 306
White Plains, New York 10601