Small businesses are getting greater flexibility in the paid sick and family and medical leave mandate created in the “phase 2” coronavirus relief package  under new guidance issued this week.

Key Facts:

• The law requires companies with less than 500 employees to provide up to two weeks of paid sick leave and up to an additional ten weeks of paid family and medical leave to employees impacted by COVID-19.
• Before the law was approved, an exemption was added for small businesses with fewer than 50 employees specifically for cases in which a child’s school or child care provider has closed.
• Small businesses will be able to claim the exemption if they meet one of the following criteria: providing the leave would cost more than the company’s available revenue and cause the business to cease operating, the loss of workers would be a substantial risk to the company’s finances or operations, or there aren’t enough available and qualified workers to replace employees who are out on leave.

The details:

The Department of Labor’s specific guidance says: “An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern.”

According to the Department, small businesses should document how their business meets at least one of these criteria and additional guidance about how to claim the exemption will be provided in regulation.

More information about the small business exemption criteria can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#58

H.R. 6201, Families First Coronavirus Response Act Explainer includes Paid Leave Requirements

https://waysandmeans.house.gov/wp-content/uploads/2020/03/HR-6201-Explainer.pdf

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