DOL continues to issue and change informal FFCRA guidance

As we previously reported, the Department of Labor (DOL) has begun issuing informal guidance surrounding the Families First Coronavirus Response Act (FFCRA) via an ever-expanding and changing set of questions and answers on the paid leave that is available beginning April 1, 2020. We’re hoping the DOL will issue actual rules soon, but in the meantime these questions and answers are the best guidance we have regarding leave related to COVID-19. In addition to the particularly useful answers from this guidance we previously pointed out (i.e., which employers are covered, intermittent leave, layoffs, etc.), there’s also now information on a number of other topics, including:

• Which employees are covered (question 38 – all full-time, part-time, and temporary workers, the same as under the federal Fair Labor Standards Act);
• Whether employees have a right to reinstatement (question 43 – limitations may apply to employers with fewer than 25 employees whose workers take leave to care for their child whose school or place of care closed or is unavailable);
• How emergency family and medical leave (EFMLA, also referred to by the DOL as expanded FMLA) interacts with the federal Family and Medical Leave Act (FMLA) for employers with at least 50 employees (question 44 – the 12 weeks of EFMLA counts against the 12 weeks of regular FMLA leave, and vice versa);
• How emergency paid sick leave (EPSL) interacts with state and local paid leave requirements (question 46 – EPSL is in addition to other paid sick leave); and
• Possible small business exemptions (questions 58 and 59 – employers with fewer than 50 employees don’t have to provide EPSL or EFMLA to workers needing time off to care for their child whose school or place of care has closed or is unavailable, if doing so would jeopardize the business as a going concern).

Frustratingly, however, the DOL has also gone back and changed some of the answers they originally posted, with the most significant changes coming to the answers for questions 15 and 16, which address documentation. The DOL is now saying employers should turn to the IRS for guidance on what documentation will be needed in order to obtain tax credits for providing EPSL and EFMLA. The IRS is still working on that guidance. Given these changes and the additional questions that are being added, it’s a good idea to check the DOL site directly to make sure you’re up to date.

Tips: This isn't the last we'll hear from the DOL, so keep an eye on our reporting and the DOL’s main landing page for COVID-19 and the American Workplace. As always, if you have a specific question not addressed by the DOL, speak with your Vigilant Law Group employment attorney, while keeping in mind that many issues are still unclear at this time.