DOL issues preliminary Q&A and paid emergency sick leave notice

On March 25, 2020, the Department of Labor (DOL) published the required employer posters to inform employees of the Emergency Paid Sick Leave Act and the FMLA expansion. That posters are available here. The applicable poster for your workplace (one for federal employers, one for other employers) should be posted in the usual places; and, for employers with employees teleworking on a temporary or regular basis, should be distributed my e-mail, mail, or company intranet or employee website.

On the afternoon of March 24, 2020, DOL also published a Q&A series on the Families First Coronavirus Response Act (FFCRA). It is available here. Of most interest to us are the following:

  1. The obligations to provide paid emergency sick leave and expanded FMLA begin April 1. The Expanded FMLA and Emergency Paid Sick Leave provisions of the FFCRA included the following language regarding the Act’s effective date: “This Act … shall take effect not later than 15 days after the date of enactment…” Although the general consensus was that the Act would take effect on April 2, the 15th day after the President signed the bill, we now have clarity that it will be effective April 1st.
  2. Any leave provided before April 1 will not be eligible for reimbursement. The Q&A rather definitively states, “The FFCRA’s paid leave provisions…apply to leave taken between April 1, 2020, and December 31, 2020.”
  3. The DOL does not plan to require onerous documentation of the small employer exception to providing school closure/loss of childcare-related leave. The DOL advised that any small employer (under 50 employees) that believes that it is qualified for the exemption for providing paid emergency sick leave or expanded FMLA leave due to a school closure or loss of childcare because providing such leave would threaten its viability as a going concern should document the reasons for its assessment. We also recommend that employers claiming the exemption document payroll on that date to establish that it had under 50 employees. You do not have to submit any of that documentation to the DOL at this time.
  4. The 500-employee threshold is determined at the time of an employee’s request for leave. The Q&A contains fairly comprehensive information about how and when to count employees.
  5.  “Real” regulations coming in April. Yep, after the effective date. We have, and will continue, to update our FFCRA items in the Breaking News section of the website as new guidance is issued. We urge you to check out linked documents online rather than relying on a pdf.