Criteria Set for Possible Exemption from Childcare Provisions Under New Paid Leave Laws

The U.S. Department of Labor issued additional guidance regarding a possible exemption from the childcare provisions under the new paid leave laws.

The DOL explains that an employer with fewer than 50 employees (small business) is exempt from providing: (a) paid sick leave due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons; and (b) expanded family and medical leave due to school or place of care closures or childcare provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern.

A small business may claim this exemption if an authorized officer of the business has determined that:

1. 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;
2. 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
3. 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.

The reason for invoking the exemption should be documented, but need not be sent to the DOL.

Questions about the new paid leave laws? Contact Suzanne Yashewski, regulatory compliance counsel, Cornerstone Credit Union League at syashewski@cornerstoneleague.coop.