The Department of Labor Issues Additional Guidance Regarding FFCRA Compliance

Employment Law  

March 29, 2020

Downey Brand COVID-19 News and Updates

Last week, the Department of Labor (“DOL”) issued additional guidance regarding the Families First Coronavirus Response Act (“FFCRA”). The guidance addresses a variety of topics.

Below are some of the highlights:

The DOL guidance confirms that the FFCRA is not retroactive. This means that the FFCRA applies to leaves taken on or after April 1, 2020, when the Act goes into effect.

The guidance also provides that when calculating pay due to employees, the FFCRA requires employers to include overtime hours. For example, the Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. Thus, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week, capped at a total of 80 hours.

The DOL confirms that employees are not entitled to emergency paid sick leave or expanded family and medical leave if the employer closes the worksite, whether for lack of business or because it was required to close pursuant to a Federal, State or local directive. The DOL also explains under what circumstances an employee may seek intermittent leave while teleworking.

The DOL further clarifies that the FFCRA’s small business exemption exempts certain businesses from mandated paid sick leave and expanded family and medical leave when:

  • Employer employs fewer than 50 employees;
  • Leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • An authorized officer of the business has determined that: (1) The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; (2) The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or (3) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Downey Brand employment law attorneys continue to track COVID-19 issues impacting the workplace. Please reach out to the Downey Brand attorney you regularly work with, or to any of the attorneys throughout our Firm if you have further questions or concerns.