COVID-19 Update - U.S. DOL Publishes Initial Guidance
The U.S. Department of Labor has published a fact sheet for employers and a Q&A regarding how to implement the emergency temporary sick leave and emergency FMLA provisions of the Families First Coronavirus Response Act (FFCRA). This is merely the first round of guidance from the Department. A required poster and additional fact sheets and Q&As will be published later in the week.
Surprisingly, the Department decided that the FFCRA’s paid leave provisions “are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.” That’s a little shorter than 15 days after enactment, but not by much. Other common questions addressed in the Q&A include:
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.
May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?
No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.
Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?
No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.
Is all leave under the FMLA now paid leave?
No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
Are the paid sick leave and expanded family and medical leave requirements retroactive?
No.
The Department did not address whether a State or local government’s stay-at-home order counts has a “Federal, State, or local quarantine or isolation order related to COVID-19,” to trigger emergency paid sick leave. Hopefully that question will be addressed in the next publication.