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DOL’s First FAQs on Families First Coronavirus Response Act Answers Some Questions but Leaves Others Open

Labor & Employment Alert Sean M. Scullen, Otto W. Immel, Alexis Barkis

The Department of Labor has just released their first set of FAQs regarding the new Emergency Sick Leave and Expanded FMLA leaves provided to employees of private businesses with fewer than 500 employees under the Families First Coronavirus Response Act (FFCRA). The FAQs clarify that the effective date has been set for April 1 and none of the provisions are retroactive. Read more about what has been answered and what issues remain unaddressed.

The DOL’s FAQ addresses 14 questions. It answers the following definitively:

  • The FFCRA is not retroactive and only covers leave between April 1 and December 31, 2020.
  • Employers who provided paid leave prior to April 1 must still provide the additional leave.
  • The determination of whether the employer has fewer than 500 employees is to be made as of the date leaved is to be taken. Counting includes:
    • Full-time and part-time employees in the US, including territories and possessions
    • Employees on leave
    • Temporary employees who are jointly employed by client and another employer (regardless of whether the jointly-employed employees are maintained on only one of the employer’s payrolls)
    • Day laborers supplied by a temporary agency for both the temporary agency and the client firm if there is a continuing employment relationship
    • The count does not include independent contractors under the FLSA
  • As expected, the FMLA/FLSA tests for joint employer and integrated employer apply for determining coverage of related corporate entities.
  • Documentation requirements for businesses with fewer than 50 employees wishing to take advantage of the exemption where providing leave would jeopardize the viability of the business as a going concern will be addressed in forthcoming regulations.
  • The mechanisms for determining the amount of eligible compensation in various situations.

The FAQs are not instructive as to several important questions, including:

  • Whether employees who have been temporarily laid off or furloughed prior to April 1 count toward the 500 employee coverage threshold.
  • Whether the paid leave is available if an employee has already been temporarily laid off, furloughed, on some other extended leave, etc. on April 1.
  • Definition of “health care provider” and “emergency responder” who can be excluded from coverage by employers.

DOL Model FFCRA Notice
The DOL is due to issue its model form of the required notice to employees today, but has not yet done so. This will likely appear here.


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