Burr & Forman

03.25.2020   |   Articles / Publications

Overview of the Department of Labor’s Guidance Explaining Emergency FMLA and Paid Sick Leave in the Families First Coronavirus Response Act

On March 24, the Department of Labor (“DOL”) announced the first round of published guidance explaining the Paid Sick Leave and Emergency Family and Medical Leave provisions of the recently enacted Families First Coronavirus Response Act (“FFCRA”), which takes effect on April 1, 2020. The guidance includes a questions and answers section, as well as fact sheets for employees and employers. Notable aspects of the guidance include the following:

  • The DOL clarified that an eligible employee may overlap the first 10 unpaid days of Emergency FMLA and the 80 hours of Paid Sick Time when the employee is unable to work or telework to care for the employee’s child whose school or place of care is closed due to COVID-19, meaning that an eligible employee is entitled to up to 12 weeks of pay for this purpose at two-thirds pay;
  • Overtime hours must be included when calculating pay, but premiums for overtime hours do not have to be included;
  • When leave is foreseeable, employees should provide notice of leave to the employer as soon as practicable, and the employer may require employees to follow reasonable notice procedures to continue receiving paid sick time after the first workday of paid leave;
  • Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment;
  • To count employees for the fewer-than-500 threshold, the DOL states that employers should include employees on leave, temporary employees jointly employed by the employer and another entity (regardless of payroll setup), and day laborers supplied by a temporary agency; and
  • Businesses with fewer than 50 employees can take advantage of an exemption from the paid leave requirements by documenting why the business meets the criteria set forth by the DOL, which will be addressed in future regulations.

We will provide further information on the DOL’s guidance and are monitoring updates provided by the DOL regarding further regulations. For questions regarding this guidance, please contact the Burr & Forman attorney with whom you regularly work.

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