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Wage and Hour Division Publishes New Guidance on Paid Leave and Expanded FMLA

On March 24, the Department of Labor (Wage and Hour Division – COVID Response) issued some new information for employers and employees about the Families First Coronavirus Response Act (FFCRA). As provided under the legislation, the U.S. Department of Labor will be issuing implementing actual regulations (planned for early April). Additionally, as warranted, the Department will continue to provide compliance assistance to employers and employees on their responsibilities and rights under the FFCRA.

Read the latest from the Wage and Hour Division:

Questions and Answers
Employer Paid Leave Requirements
Employee Paid Leave Rights

Key Takeaways and Updates for Employers

April 1 will be the effective date for these new paid leave law (not April 2).
DOL plans to publish a new FFCRA poster on March 25 that will need to be posted at employers covered by the new law.
The law is not retroactive to leave taken prior to April 1.
An employer counts employees (to determine 500 or less) at the time an employee’s leave is taken. Further guidance on counting employees and joint employers.
Not much guidance on the exemption for under 50 employees. To elect this small business exemption, an employer should document why your business meets the DOL criteria (it “jeopardizes the viability of the business”), which will be addressed in more detail in new regulations coming soon. Do not send any materials to the DOL when seeking the small business exemption.
DOL gave further details about how to calculate the regular rate of pay for purposes of the FFCRA.
An employer cannot deny the use of new emergency paid sick leave to an employee that already took paid leave for a reason identified in the FFCRA prior to April 1, 2020.
Due to how fast things change, stay up to date by participating in one of the many webinars presented by local and national employment law firms and payroll companies.

The Department of Labor also announced this morning (in Field Assistance Bulletin 2020-1) a 30 day non-enforcement period (through April 17) provided an employer has made reasonable good faith efforts to comply with the paid sick leave and extended family and medical leave law. The following factors must be present to find “good faith” compliance:

Employer remedies any violations including making affected employees whole as soon as practicable.
Violations were not willful (i.e. employer knew or showed reckless disregard for the matter of whether its conduct was prohibited).
The Department receives a written commitment from the employer to comply in the future.

After April 17, the limited enforcement stay will be lifted and the DOL will fully enforce violations of the Act.

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