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Davis Brown Employment and Labor Law Blog

DOL Issues Guidance for COVID-19 Leave Policies - March 25, 2020

On March 24, the Department of Labor issued partial regulations and guidance for employers and employees regarding the emergency FMLA and paid sick leave laws under the Families First Coronavirus Response Act. The preliminary guidance answered some key questions but left other issues open, including how to apply for an exemption. Additional guidance will be released. For now, key questions and answers include:

When does the act take effect?

It takes effect April 1, 2020 and ends December 31, 2020.

Is it retroactive?

No, it does not apply to leave prior to the April 1 effective date. Further, employers may not count prior leave taken against the new leave allotment. It would not apply to persons who were previously terminated from employment.

How much is the paid sick time?

Up to a maximum of 80 hours based on the number of hours worked in a week. This is similar to how employers already calculate FMLA leave time. The time is capped at 80 hours. It is not based on the number of events, meaning if an employee used 80 hours for a school closure, they do not get another 80 hours if they later get sick from COVID-19.

Does the 10 weeks of EFMLA paid leave apply for illness or injury?

No, this appears to apply exclusively to school and day care closures.

Does pay include special incentive pay like shift differentials?

No, the pay provided for under the statute is calculated at the regular rate but must be at least minimum wage.

What happens if I make a mistake while learning how to apply this new law to my business?

The Department of Labor will not bring enforcement actions against any employer for violations of the FFCRA within the first 30-days of its enactment (which appear at this time to be March 18-April 17, 2020) provided that the employer has made reasonable, good faith efforts to comply. As a part of this good faith position, if a violation is discovered, the DOL and IRS will expect the employer to remedy any violation. After April 17, this limited stay of enforcement will likely be lifted and the FFCRA will likely be fully enforced.

Do I have to give my employees notice of the new leave policies?

Yes. On March 25, the DOL published the notice posters employers are required to post in a conspicuous location as well as an FAQ about them. With many employees now working remotely, employers are able to distribute the posters through electronic means to satisfy the requirement. 

More Guidance Coming

Key questions left unanswered include a definition for the healthcare employee exemption and how employers with fewer than 50 employees may apply for an exemption. We will continue to monitor DOL guidance and post updates when they are announced. 

All of our resources about the pandemic are available on our Coronavirus/COVID-19 Legal Resources webpage.

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