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DOL Issues FFCRA Notices, Q&A Guidance

Last week, the Department of Labor released a series of Questions and Answers to provide guidance regarding employer obligations under two key provisions of the Families First Coronavirus Relief Act (“FFCRA”), the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. The guidance has been updated since to address more questions, including as recently as this weekend, and should be monitored for additional updates. Employers should review the Q&A in full, as it covers a wide range of topics, but the following may be of particular interest:

  • The DOL has identified April 1, 2020 as the effective date for the new leave requirements, not April 2, as was widely expected.  (See Question No. 1).

  • Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act apply to employers with fewer than 500 employees.  Employers should refer to Question No. 2 for clarification as to how to properly assess employee headcount for these purposes.

  • Employees may be eligible for both paid sick leave and expanded family and medical leave if they are unable to work because of their child’s school or day care closure, but the total leave entitlement remains twelve weeks.  (See Question No. 10). 

  • The requirements of the FFCRA are not retroactive (see Question No. 13), and if an employer gave sick time for a qualifying reason prior to the effective date, it cannot deny an eligible employee qualifying leave after April 1.  (See Question No. 11). 

  • An employer may allow an employee to take the expanded family and medical leave intermittently.  (See Question Nos. 20, 22).

  • Employees who were laid off or furloughed before the April 1 effective date of the FFCRA are not eligible for leave benefits (see Question No. 23), and if an employer closes a worksite or furloughs employees on or after April 1, employees are no longer eligible for leave benefits.  (See Question Nos. 24, 25, 26, 27).

  • The Q&A confirms that paid sick leave and expanded family medical leave under the FFCRA are in addition to employees’ preexisting leave entitlements.  (See Question Nos. 32, 46).

  • The Q&A clarifies the scope of the exemption for “health care providers” under both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.  (See Question No. 56).

  • The Q&A also clarifies the scope of the exemption for “emergency responders” under both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.  (See Question No. 57).

  • The Q&A sets forth how employers with fewer than 50 employees may go about establishing that they qualify for the small business exemption.  (See Question Nos. 58 and 59).

The guidance also offers assistance as to some of the more technical aspects of these leave entitlements, such as how to calculate leave hours owed to part-time employees (see Question No. 5), how to calculate an employee’s regular rate of pay (see Question Nos. 6, 8), and how to determine employee’s eligibility for the expanded family and medical leave provisions (see Question No. 14).

In addition, the DOL made available the required notice, which must be posted by the April 1 effective date, as well as an additional Q&A document addressing the notice requirements specifically. Each covered employer must post a notice in a conspicuous place on its premises. Employers, particularly those that may have employees teleworking, should note that they may satisfy this requirement by emailing or direct mailing this notice to employees, or posting the notice electronically on an employee information website.

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About this Author

Caroline Park Labor and employment lawyer Wiggin Dana
Counsel

Caroline is Counsel in Wiggin and Dana's Labor, Employment and Benefits Department and is a member of the firm’s Diversity Committee.

Caroline’s practice encompasses federal and state court litigation and the arbitration and mediation of employment discrimination claims, wrongful discharge claims, wage and hour claims, disputes over the enforcement of covenants not to compete, and other employment-related disagreements. Caroline also represents employers in cases involving claims of discrimination, harassment, and retaliation, before the Commission on Human Rights and Opportunities...

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