The Small Employer Exemption to Paid Leave For Child Care Under the Family First Corona Response Act
By: E. Steven Lauer, Esq
The Paid Leave Under the Family First Corona Response Act provides paid leave for employees, who have been employed for 30 days or more, under six categories.
The fifth category for paid sick leave applies when “the employee is unable to work because the employee needs to care for his or her son or daughter if: a) the child's school or place of care has closed; or b) the childcare provider is unavailable due to COVID-19 related reasons.” The employee must be able to perform work for his or her employer, but for the need to care for his or her son or daughter, which means an employee may not take paid sick leave if the employer does not have work for him or her. Moreover, an employee may take sick leave to care for his or her child only when the employee needs to and actually is caring for his or her child. Generally, an employee does not need to take such leave if another suitable individual, such as a co-parent co-guardian or the usual childcare provider is available to provide the care for the employee’s child needs.
Although the paid sick leave act applies only to employers who have less than 500 employees, there is a Small Employer Exemption to the paid sick leave which applies to the fifth category for paid sick leave stated above.
In particular, if an employer has less than 50 employees, the employer is exempt from having to provide an employee with paid sick leave and expanded family and medical leave to care for his or her child whose school or place of care is closed or childcare provider is unavailable when such leave would “jeopardize the viability of the business as a going concern.” In order to meet this criteria, the small employer would have to show that:
1) such leave would cause the small employer’s expenses and financial obligations to exceed available available business revenue and caused a small employer to cease operating at a minimal capacity;
2) the absence of the employee or the employees requesting such leave would pose a substantial risk to the financial, health or operational capacity of the small employer because of their specialized skill knowledge of the business or responsibilities; or
3) the small employer cannot find other workers who are able, willing, and qualified and who will be available at the time and place needed to perform the labor or services the employee or employees requesting leave provide, and these labor and services are needed for the small employer to operate at a minimal capacity.
For reasons 1, 2, or 3, the employer may deny paid sick leave or expanded family and medical leave for childcare only to those otherwise eligible employees.
If a small employer decides to deny paid sick leave or expanded family and medical leave to an employee or employees whose child's school or place of cares close or childcare providers unavailable, the small employer must document the fact and circumstances that meet the requirements set out below to justify such denial. The employer should not send such materials or documentation to the Department of Labor, but rather should retain such records for its own files.
In exercising its authority to exempt certain employers with fewer than 50 employees, the Department of Labor balanced two potential competing objectives. On the one hand, the leave afforded by the Act was designed to be widely available to employees to assist navigating the social and economic impacts of COVID-19 as well as public and private efforts to contain and slow the spread of the virus. On the other hand, the Department recognizes that leave entitlements have little value if they cause an employer to go out of business, and in doing so deny employees not only leave but also a job.
If you have any questions about how this Act affects your business or you as an employee, contact the lawyers at Lauer Law, P.A.