Exempting out of EPSL and EFMLA

1

Our practice has taken the option of exempting out of the EPSL and EFMLA provision under FFCRA.

We have the displayed the federal employment poster related to COVID19. Does anyone have any resource/posters they have used for posting a notice regarding the exemption decision?

2

I have wondered about this too. We printed out FAQ from the government sight where it specifies why we can opt to take the exemption and we reviewed it with all of our staff. We explained why we have to exempt ourselves from that.

3

This is the language we decided to attach to the bottom of the DOL poster:

The federal government passed the Families First Coronavirus Response Act (FFRCA) which went into effect April 1, 2020. Paid leave entitlements under this act include the Emergency Paid Sick Leave (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFMLA). Our office provides health care and our employees are considered essential workers who provide services to patients and their families. Our practice has taken the option of exempting out of the EPSL and EFMLA provision under FFCRA. Please consider this posting as a notification of this decision.

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4

thanks - that sounds great

5

I did a Letter and presented that to the employees. It was received well.
Here is basically what it said and what it had in it:

Pediatric Associates is claiming exemption from the FFCRA. The bases of this exemption: we are under 50 employees and providing such leave would jeopardize the viability of the business.
Our small practice of under 50 employees creates a situation where when one or two is out we are not able to deliver the level of care necessary to keep all providers in operation.

Practice Manager authorized officer:

Date: _______________

Owner/Authorized Officer:

Date: ________________

The predeeding statement is written for express concerns of viability to the business structure of Pediatric Associates PLLC in relation to the FFCRA. I have documented this as the Practice Manager an authorized officer of Pediatric Associates. Dr. Michael Garcia has also authorized as an authorized officer/owner.

https://www.dol.gov/agencies/whd/pandemic/ffcra

  1. If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

  1. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?
    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. A small business may claim this exemption if an authorized officer of the business has determined that:
  2. 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;
  3. 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
  4. 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.
  5. If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?
    A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:
    • employer employs fewer than 50 employees;
    • 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 Question 58 is satisfied.
    The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.
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