U.S. Department of Labor issues guidance on new paid leave laws

Vermont Business Magazine The U.S. Department of Labor (DOL) released its first round of guidance on the Families First Coronavirus Response Act (FFCRA), providing information to employees and employers about how each will be able to take advantage of the protections and relief offered by the Emergency Family and Medical Leave Expansion Act (“FMLA Expansion”) and the Emergency Paid Sick Leave Act (“EPSLA”).

Key Points

  • The effective date of the FFCRA, and when employers need to begin complying with the paid leave law provisions, is April 1, 2020 (not April 2nd as originally expected).
  • The FFCRA will not be applied retroactively.
  • The paid leave law provisions apply to employers with fewer than 500 employees. The new DOL guidance provides answers to questions about how and when employees are counted, and when to consider separate entities to be a single employer for purposes of determining if an employer has less than 500 employees.
  • Employers with fewer than 50 employees are exempt from the paid leave law obligations if complying with them would jeopardize the viability of their business as a going concern.These employers will need to document why their business meets the exemption criteria, which will be explained in future regulations. Employers should not send any materials to the DOL to request the exemption.
  • The guidance provides assistance to employers on how to count hours worked for part-time employees.
  • Paid leave under the FMLA Expansion and the EPSLA does not include a premium for overtime hours.
  • Since the EPSLA imposes a new leave requirement on employers that is effective on April 1st, employers cannot deny an employee paid sick leave if the employee already used paid leave for a reason identified in the EPSLA prior to it going into effect.
  • An employee may be eligible for leave under both the FMLA Expansion Act and the EPSLA to care for their child whose school or place of care is closed or whose child care provider is unavailable, but that time will run concurrently, meaning the employee will only have a total of 12 weeks of paid leave.Therefore, an employee may use EPSLA time for the first two weeks of FMLA Expansion leave, which otherwise would be unpaid, unless the employee elects to use paid time off provided by their employer. Thereafter, the employee will have 10 weeks of FMLA Expansion time remaining.

Links to the Guidance

Fact Sheet for Employers: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
Fact Sheet for Employees: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
Question and Answers: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

The DOL’s guidance is preliminary and informal, and the DOL may supplement or modify this compliance assistance. The more definitive implementing regulations should be issued by the DOL in the near future.

Source: MONTPELIER — Dinse, Knapp & McAndrew 3.25.2020