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

March 25, 2020

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.

In addition to the updates on the effective date and the model notice, the Department of Labor has issued a Bulletin stating that there will be a short period of temporary non-enforcement through April 17, provided that employers act reasonably and in good faith to comply with the Act.[1]  The Department has also stated that regulations are expected in April. The Department has also provided guidance on some frequently asked questions, a few of which are summarized below:

  1. The Act applies to employers with fewer than 500 employees. How should employers count the number of employees to determine whether or not they are covered?

An employer has fewer than 500 employees “if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees.”[2]  This includes full time employees, part time employees, and temporary employees. However, it does not include independent contractors who are appropriately classified as contractors and not employees under the Fair Labor Standards Act.

Additionally, the DOL has clarified that the concept of “joint employers” and “integrated employers” as those terms are defined under the Fair Labor Standards Act and the Family and Medical Leave Act will be applied.

  1. How much leave is an employer obligated to provide an employee who may qualify for more than one kind of Emergency Paid Sick Leave?

Through the questions, the DOL has clarified that employees may qualify for emergency paid sick leave for more than one reason. However, the agency also notes that regardless of those qualifying reasons, the total number of hours of leave will be capped at 80 hours under the Emergency Paid Sick Leave Act.

  1. How do the two kinds of leave – emergency family leave and emergency paid sick leave – interact?

Employees may be entitled to take up to a total of twelve weeks of leave. The first two weeks of leave would be under the Emergency Paid Sick Leave Act, and then additional leave may apply under the Emergency Family and Medical Leave Expansion Act. Emergency leave under the family and medical leave portion of the new law is provided only for leave needed as a result of a school or child care closure due to COVID-19.

  1. Is a small business exempt from the requirement of providing leave, if the provision of emergency leave would jeopardize the viability of a business as a going concern with fewer than 50 employees?

The DOL has clarified that in order to elect this exemption, the business must document why the viability of the business as a going concern is in jeopardy. It further stated that forthcoming regulations  would provide more detail about the criteria for establishing this exemption. At this time, DOL has also stated that employers should not send materials to the Department to seek the exemption, but has provided no further details regarding the procedures for claiming the exemption.

Final Takeaways

As with all other aspects of the COVID-19 pandemic response, laws are rapidly evolving.  Please reach out to your Spencer Fane attorney if you have questions on how this new act affects your business or organization.

This blog post was drafted by Helen Holden. She is an attorney in the Spencer Fane LLP Phoenix, Arizona office.

[1] Acting reasonably and in good faith requires that the employer remedy any violations, including by making all affected employees whole as soon as practicable, does not willfully violate the Act, and that employers commit in writing to comply with the Act in the future.