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COVID-19 Emergency Paid Sick Leave and Family Medical Leave: Updated Department of Labor FAQs

The Department of Labor (the “DOL”) issued FAQs regarding the Families First Coronavirus Response Act (the “FFCRA”) and has updated its FAQs multiple times by adding questions to the same document.  The FAQs can be found here. The most recent update occurred on March 28, 2020 and addressed many of employers’ questions that were initially left unanswered in the FFCRA and the initial FAQs.

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: An updated notice and more from Department of Labor

As of Friday, March 27, the Department of Labor has issued an updated notice on its website, as well as responses to additional questions about the Families First Coronavirus Response Act (the “Act”). The new notice can be found here: FFCRA Poster.[1]  The updated notice clarifies that employees may have a total of up to 12 weeks of leave, paid at 2/3 of pay, to care for a child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: Updates from Department of Labor

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”). We outlined the key provisions of this law here. Since the publication of our original article, the Department of Labor Wage and Hour Division, which will enforce the new law, has published updated guidance about the new law. The Department has now clarified that the law will officially take effect on April 1, 2020, and applies to leave taken between April 1, 2020 and December 31, 2020.  The new law also requires that employers post notice regarding the new law, and a model notice has been published. It can be found here.

COVID-19 Emergency Paid Sick Leave and Family Medical Leave: Key Provisions

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act, which goes into effect no later than April 2, 2020.  The new law imposes sweeping new emergency paid leave and expanded family medical leave requirements for employers nationwide.  Here is a summary of the key provisions affecting employers:

Coronavirus is a Recordable Illness According to OSHA

According to recent OSHA guidance, COVID-19 (i.e., the coronavirus) is subject to the agency’s Injury and Illness Recordkeeping and Reporting Requirements at 29 CFR 1904.  This means that employers who are subject to the OSHA recordkeeping and reporting rules must include and log employee illnesses related to the coronavirus when an employee is infected on the job.  So while the common cold and Flu are exempt from work-related exposures, the coronavirus is not.

NLRB Issues Final Joint Employer Rule

The National Labor Relations Board (“NLRB”) has updated its joint employment rule (the “Final Rule”).  The Final Rule, which will be published in the February 26, 2020 Federal Register effectively overturns the joint-employer standard established in the 2015 Browning-Ferris Industries decision, which expanded the definition of joint employer based on indirect or limited control.  NLRB Chairman John Ring explained that “[t]his [F]inal [R]ule gives our joint-employer standard the clarity, stability, and predictability that is essential to any successful labor-management relationship and vital to our national economy.”    

Fluctuating Laws: DOL Announces Proposed Fluctuating Workweek Regulations

On November 5, 2019, the Department of Labor (“DOL”) published a proposal to revise regulations governing the fluctuating workweek method of calculating overtime pay under the Fair Labor Standards Act (“FLSA”). This method of calculating overtime may apply if certain conditions are met. These conditions include that the employees paid under this method work fluctuating hours, and they and their employers agree that the employees are paid fixed salary for all hours worked plus an overtime premium. There are very specific requirements for utilizing this method, but utilizing the method in a compliant manner can be complicated due to the need to calculate the regular rate of pay for every week in which the employee works more than 40 hours. Additionally, some state laws prohibit use of this method.

OSHA Issues Enforcement Directives Targeting a Variety of Industry and Manufacturers

Effective October 1, 2019, Region VII OSHA (Kansas, Missouri, Nebraska, and Iowa) announced a combination of Regional Emphasis Programs, along with state-led local emphasis programs.

DOL Issues Opinion Letter on FMLA Leave and IEP Meetings

The U.S. Department of Labor/Wage and Hour Division has continued its practice of issuing opinion letters. It recently issued an opinion letter that addresses the question of whether an employee may take FMLA leave to attend a Committee on Special Education (“CSE”) meeting to discuss a child’s Individualized Education Program (“IEP”). See DOL Opinion Letter FMLA2019-2-A.

Agency Developments at the Department of Labor: The Fair Labor Standards Act

In the summer of 2019, the Department of Labor (“DOL”) made headlines when Secretary of Labor Alexander Acosta resigned. President Trump then nominated Eugene Scalia for the position, and Mr. Scalia was sworn in as Secretary of Labor on September 30. In recent months, the Senate also confirmed Cheryl Stanton as Administrator of the Wage and Hour Division.

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