We continue our five-part series where we answer your top questions regarding how Covid-19 affects your business.*  With many states reporting an increase in cases, it's important to know how this could affect your business.  We have the next three questions and answers below.

If a business chooses to close temporarily, does it need to continue paying employees?
This depends on your employee’s classification.

1. Non-exempt employees only need to be paid for actual hours worked, although employers may choose to pay the employee for the time even if they did not work. Employers may require non-exempt employees to take time off unpaid, to use any available vacation time or PTO, or may allow the employee to choose between taking an unpaid day or using vacation time/PTO. If the business has existing policies in place permitting a flexible or reduced schedule, those may come into play as well. If those policies are not in place, businesses may want to consider implementing them.
2. Exempt employees must be paid their regular salary unless the office is closed for an entire work week and they do no work at all from home, i.e., they do not even log in to check their email. The business may require them to use accrued PTO or vacation time during a closure if the business has an existing policy to that effect or if it has been the business’s past practice. It is prudent to give employees advance notice if you plan to require them to use their accrued vacation time/PTO without the employees’ consent. Once again, those policies must have been in place prior to the crisis.

Assuming that an employee typically works Monday through Friday, but is caring for a child whose school or place of care is closed due to COVID-19, may the employer change the employee’s schedule to work on weekends, when the child’s school would have been closed anyhow?
This situation has not been specifically covered by Department of Labor guidance, but requiring an employee to change his or her schedule this drastically does not seem consistent with the legislative intent.

How does a business with fewer than 50 employees petition for an exemption from Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLA)?
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 of Labor (DOL). According to the latest DOL guidance, an employer, including a religious or nonprofit organization, with fewer than 50 employees 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:

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

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*This information is provided for information purposes only, and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included herein without seeking legal or other professional advice from Marvel Law.