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DOL Expands Guidance on Families First Coronavirus Response Act

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Written by Kristy A. Fahland
Posted Mar 31, 2020

The U.S. Department of Labor has issued expanded guidance and questions and answers on the implementation and interpretation of the Families First Coronavirus Response Act (FFCRA) and its Emergency Paid Sick Leave and Emergency Family and Medical Leave Expansion Act.  This new federal law goes into effect on April 1, 2020.  This guidance is intended to assist employers in navigating the new leave laws, and their applicability to their workforce in specific situations.  A few of the highlights from the new guidance include:

  • An employee is not eligible for Emergency Sick Leave and/or Expanded FMLA if an employer closes their worksite on or after April 1, 2020 (the effective date of the FFCRA). The employee, however, may be eligible for unemployment insurance benefits.

  • An employee is not eligible for Emergency Sick Leave and/or Expanded FMLA if an employee is furloughed on or after April 1, 2020. The employee, however, may be eligible for unemployment insurance benefits.

  • An employee cannot use Emergency Sick Leave or Expanded FMLA for hours that an employee is no longer scheduled to work due to the employer not having work for the employee to perform.

  • Employers are still prohibited from taking any adverse action because the employee takes leave. However, employees taking Emergency Sick Leave or Expanded FMLA are not protected from actions such as layoffs while on leave that would have affected the employee regardless of whether or not the employee took leave.

  • Employees are eligible for Emergency Sick Leave regardless of whether or not they have taken traditional FMLA leave during a 12-month period.

  • An employee’s eligibility for Expanded FMLA leave is dependent on how much traditional FMLA leave the employee has taken during a 12-month period. For example, if an employee took two weeks of FMLA leave in January 2020 for surgery, the employee would have 10 weeks of FMLA (including Expanded FMLA) available.

  • Small Employers (under 50 employees) may claim an exemption if an authorized officer of the business has determined:

    • The provision of Emergency Sick Leave or Expanded FMLA 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;

    • The absence of the employee or employees requesting Emergency Sick Leave or Expanded FMLA 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

    • 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 Emergency Sick Leave or Expanded FMLA, and these labor or services are needed for the small business to operate at a minimal capacity.

The full Questions and Answers page can be found here:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

If you have specific questions about the applicability of the act to your company or to specific situations, please feel free to contact Kristy A. Fahland for additional details.

Learn More about Messerli Kramer’s Attorneys Kristy A. Fahland
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