The amount of information that has been released over the past weeks related to COVID-19 is immense. Today we highlight the most recent clarifications from the Department of Labor (DOL) as it relates to Emergency Paid Sick Leave, Emergency Family Medical Leave and what businesses may qualify for an exemption. For the backstory, refer to our earlier communications. You can also reference the updated DOL FAQ’s for details not included here . If you, like so many, find the DOL pages overwhelming, please reach out to your consulting team.  

Q: If my business operations are shut down, do I need to provide the Emergency Paid Sick Leave (EPSL) and/or Emergency Family Medical Leave Act (EFMLA) to my employees? 
A: No. If your business is no longer operating due to lack of business or because of a federal, state, or local order, you are not required to pay these benefits. Employees that have been sent home and are no longer being paid are not eligible. Your employees should file for unemployment in this scenario. 

Q: I own a small business. Am I exempt from providing EFMLA and/or EPSL to my employees?
A: Maybe. While there was speculation that small businesses with less than 50 employees would be able to claim an exemption from providing both of these leaves, this is no longer the case. The very narrow exemption only applies to employers with a proven hardship that allows you to not pay EPSL or EFMLA only due to a child being at home because a school or place of care is closed. You would also need to prove that providing these leaves would be detrimental to your business's continued operations.

If this is the case, you should document your reasoning for each criteria and be prepared to submit the information for approval. This process is still being determined. Further clarification is expected later this week. 

The DOL has determined that an employer may claim this exemption if an authorized business official has determined 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; or 
  • 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.

A company may decide to claim an exemption if the following criteria are met: 
  • employer employs fewer than 50 employees; and
  • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • an authorized officer of the business has determined that at least one of the three conditions described in the previous section is met.

As the employer, you are encouraged to work with your employees to determine the best solution for ensuring safety and maintaining business operations.

Q: My employees are still able to work their regularly scheduled hours by telecommuting but require an adjusted schedule. Am I required to pay them EPSL or EFMLA?
A: Not necessarily. If an employee is able to complete their regularly scheduled work within the same hours allotment, they would not be eligible for these benefits. 

If an employee with a qualifying reason is unable to telecommute or perform their regular work, the employee would be eligible to receive EPSL. 

If an employee is unable to telecommute or complete the required working hours due to a child being at home whose school or day care has been closed, they would be eligible to receive EFMLA benefits. 

Note: Documentation is required from the employee when requesting leave. Please contact your consultant for additional details. 

This is a lot of information to digest and more is expected as we get further down the road. If you have specific questions or would like clarification on how to handle your workforce, please reach out to a consultant.