The U.S. Department of Labor has issued initial guidance on various issues under the Families First Coronavirus Response Act, publishing a Fact Sheet for Employers (here), a Fact Sheet for Employees (here), and a Questions and Answers document (here) addressing some of the questions posed by businesses and their workers over the past week.
The March 24 guidance does not contain any of the agency’s draft regulations or its anticipated notice to employees, which will be released soon. The guidance is not legally binding but could be persuasive to courts and other agencies due to the DOL’s oversight role under the Act.
The Fact Sheet for Employees covers basic qualification, length of leave, and pay issues under both the Emergency Paid Sick Leave and Expanded Family Medical and Leave portions of the new law. It also reiterates that Paid Sick Leave is available immediately to employees upon hire, while Expanded Family and Medical Leave requires workers to have been employed for 30 days. Other important issues, such as when employers with fewer than 50 employees may be excused from certain parts of the law, are left to future regulations that are “expected [in] April 2020.”
The Fact Sheet for Employers is similar but contains a few important details. First, it clarifies that employees are not required to use the Emergency Paid Sick Leave benefit during the first two weeks of Expanded Family and Medical Leave (saving it, perhaps, for later in the year) but may “elect to substitute any accrued vacation leave, personal leave, or medical or sick leave.” Second, it reiterates that leave does not carry over from year to year (which makes sense, as the law sunsets on December 31, 2020) and is not cashed out at termination. Third, it promises that a model notice to employees will be published by March 25, 2020.
The guidance also notes that employers of Health Care Providers or Emergency Responders may elect to exclude such employees from leave under the Act, but it does not define these terms. “Health Care Provider” presumably has the same meaning as under the Family Medical Leave Act, which includes physicians, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, Nurse Practitioners, nurse-midwives, clinical social workers, physician assistants, certain religious practitioners, and – more broadly – any provider from whom an employer or its group health plan will accept “certification of the existence of a serious health condition … for benefits.” See 29 C.F.R. § 825.125.
“First Responder” presumably has the same meaning used under the federal Fair Labor Standards Act, which includes law enforcement and correction/probation personnel, park rangers, firefighters, emergency medical and rescue personnel (paramedic, EMT, etc.) and other similar employees. See DOL Fact Sheet No. 17.
The Questions and Answers sheet addresses several important issues under the new law, including:
· The paid leave provisions apply only to leaves between April 1 and December 31, 2020 – and is not retroactive (so paid leave provided before April 1 will not count toward the minimums and will not be reimbursable under its tax-refund program);
· The 500-employee maximum includes only employees in the United States, including joint employees but excluding independent contractors, and “integrated employers” may aggregate their employees toward the threshold;
· Employers with fewer than 50 employees must “document” why they meet the exemption criteria (to be addressed in April regulations) but will not be required to submit materials directly to the DOL;
· Employers follow the methods described in the Act to determine part-time employees’ benefit, and overtime is included when calculating any employee’s usual schedule (though the maximum benefit is capped at 80 hours);
· The “regular rate” of pay used for benefit calculation refers to an employee’s regular rate of pay (calculated the same way regular rate is calculated for overtime) over the past six months; and
· Employees have been employed for 30 days if they were on the employer’s payroll 30 days prior to the day leave starts (regardless of time worked). Employees who worked as temporary employees may count that time toward the 30-day requirement.
We expect more guidance in the coming week, and a model notice within the coming
The DOL’s landing page for today’s guidance can be viewed here.