A graphic on page A8 of the Honolulu Star-Advertiser Wednesday offered detailed options for employers and employees. The U.S. Department of Labor has clarified a few items about paid leave referred to in the second section of the chart. Go to 808ne.ws/2R2650n for more information.
First, to be eligible for emergency paid sick or family leave, the employee must be unable work because of one of the COVID-19 qualifying reasons. The employer must have work for the employee and one of the COVID-19 qualifying reasons must prevent the employee from being able to perform the work, either at the normal worksite or by means of telework. (Q&A 18 in link above)
If the employer closes the worksite (whether for lack of business or because it was required to close by the governor or mayor’s directives) the employee is not eligible for emergency paid sick or family leave. (Q&A 24, 25 and 27 in link above)
If the employer furloughs the employee because the employer does not have enough work or business for the employee, the employee is not entitled to emergency paid sick or family leave either (Q&A 27 in link above)
Second, to determine whether the employer has fewer than 500 employees and is subject to the emergency sick and family leave requirements, the employer should not count the employees of a parent company that owns the employer, unless the parent company directly or indirectly controls the employer, considering at least four factors including whether the parent company:
>> Hires or fires the employer’s employees;
>> Supervises and controls the employees’ work schedule or conditions of employment to a substantial degree;
>> Determines the employee’s rate and method of payment and;
>> Maintains the employee’s employment records (not alone determinative).
The employer should only include the parent company’s employees to exceed the 500-employee count to avoid coverage if considering all four factors the parent company directly or indirectly controls the employer (Q&A 2 in link above).
Third, USDOL provided more details on the small business exemption: If an employer (including a religious or nonprofit organization) has fewer than 50 employees, the employer may claim an exemption from providing paid sick or family 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.
To claim the exemption, an authorized officer of the small business must determine either:
>> The provision of paid sick leave or expanded family and medical leave would result in the small business’ 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 (Q&A 58 & 59 in link above).
