Today and yesterday, the Department of Labor (DOL) issued guidance for employer regarding the emergency paid sick leave and expanded Family and Medical Leave (FMLA) provisions of the Families First Coronavirus Response Act (FFCRA). As expected, the DOL also made available today a model notice that employers must provide to employees about their leave rights under the FFCRA. An FAQ about the notice was also issued. The DOL’s regulations will be forthcoming.
The following are 5 Key Takeaways from the DOL’s guidance to date:
- The effective date for the new leave provisions is April 1, 2020 (not April 2, 2020). Both provisions sunset on December 31, 2020.
- The “fewer than 500 employees” threshold to be a covered employer applies only to private sector employers. For covered public sector employers, the leave provisions apply regardless of size.
- The DOL’s model notice must be physically posted in a conspicuous place in each workplace. For employees working remotely (which is most of us), the FFCRA’s notice requirement can be satisfied by providing the model notice to employees through e-mail, direct mail, or posting on an employee internal or external website.
- For emergency paid sick leave, full-time employees are eligible for up to 2 weeks (10 days) of paid leave. For part-time employees, they are entitled to an amount of leave equal to the average number of hours the employee works in a 2-week period. For part-time employees that work varying hours, the employer can use a 2-week average for the past 6 months. If the employee has not been employed for 6 months, the employer should look to the number of hours that the employer and employee agreed that the employee would work upon hiring. If there is no agreement, the employer should use the average number of hours per day the employee was scheduled to work during the term of employment.
- As to these new leave rights, an employee must have a qualifying reason for the leave and be unable to work, including an inability to telework.
The DOL’s public comment period for the new regulations will close on March 29, 2020. For a more detailed summary of the leave provisions under the FFCRA, please view our firm’s March 19, 2020 publication.