October 24, 2020

Volume X, Number 298

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DOL Issues Corrections to FFCRA Regulations – What Employers Need to Know

On April 10, 2020, the Department of Labor (“DOL”) released corrections to the regulations implementing the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”) provisions of the Families First Coronavirus Response Act (“FFCRA”).

We have written in detail about the DOL’s FFCRA regulations in a recently-updated post here.  Our prior posts on the DOL’s informal question and answer guidance on the FFCRA (“Q&As”) can be found here, here and here.

Corrections to the regulations address, for the most part, section and subsection heading, numbering and referencing issues.  A previous citation to April 2, 2020 as the effective date of the temporary rule is corrected to reflect the actual effective date – April 1, 2020.

The most significant correction addresses an area of “murkiness” we pointed out in our prior post on the regulations.  As we wrote, the regulations are clear that “an employer may not require an employee to use provided or accrued paid vacation, personal, medical or sick leave before or concurrently with EPSLA leave. This is because EPSLA leave is in addition to, not a substitute for, an employee’s other leave entitlements. An employer and employee may mutually agree that the employee will use preexisting leave entitlements to supplement his/her paid sick leave, up to the employee’s normal earnings.”

With respect to the use of other leave concurrently with EFMLEA leave, the regulations made clear that an employee may elect to use existing leave entitlements concurrently with expanded family and medical leave under the EFMLEA, but the regulations – in 29 C.F.R. §§ § 826.160(c)(1) and 826.70(f) – contained contradictory guidance regarding whether an employer may require an employee to use existing leave concurrently.* The DOL has recognized this inconsistency and in its revised regulations deleted § 826.70(f) completely. With this revision, the regulations are clear that “an Eligible Employee may elect to use, or an Employer may require that an Eligible Employee use, provided or accrued leave available to the Eligible Employee [] under the Employer’s policies, such as vacation or personal leave or paid time off, concurrently with Expanded Family and Medical Leave.”  29 C.F.R. § 826.160(c)(1).

We will continued to monitor and report on changes and updates to the DOL’s guidance on the FFCRA.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 105
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About this Author

Guy Brenner, Labor Attorney, Proskauer Rose, arbitration proceedings Lawyer
Partner

Guy Brenner is a partner in the Labor & Employment Law Department and co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues,...

202-416-6830
Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm
Partner

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims, Evandro has extensive experience defending clients before federal and state courts. He tries cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions. Evandro often draws on his extensive litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful anti-discrimination and harassment training, as well as robust employment policies.

Working in a wide range of industries, Evandro has experience representing clients in financial services (including hedge funds and private equity firms), professional sports, media, retail, law firms, higher education, social service providers and others. Evandro also advises charter schools and other not-for-profit organizations on labor and employment matters on a pro bono basis.

212.969.3132
Rachel Therese Labor and Employment Lawyer Proskauer Law Firm
Associate

Rachel Gulotta is an associate in the Labor & Employment Department.

She earned her  B.A. in French and history from Davidson College and her J.D. from Tulane Law School. During law school, she was moot court chief justice, a member of the Willem C. Vis International Commercial Arbitration moot court team, and president of the Civil Law Society. Additionally, she clerked with Magistrate Judge Joseph C. Wilkinson, Jr. in the United States District Court for Eastern District of Louisiana for one year after law school. 

504-310-4089
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