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Department of Labor Guidance for Emergency FMLA and Sick Leave Legislation

03/31/2020

In our post, Emergency FMLA and Sick Leave Legislation, we discuss the legislation passed by congress which contains two temporary provisions providing paid leave to employees forced to miss work because of the COVID-19 outbreak - emergency expansion of the Family Medical Leave Act and emergency paid sick leave. 

The Department of Labor ("DOL") has now issued guidance, a fact sheet, and a mandatory notice related to the emergency paid sick leave and expanded family and medical leave (“EFMLA”) permitted under the Families First Coronavirus Response Act (“FFCRA”) legislation. Notably, the DOL guidance sets the effective date for the emergency leaves as April 1, not the April 2 date stated in the legislation. Other key guidance includes:    

  • Emergency paid sick leave is available to an employee as of April 1, even if the employee was given paid sick leave for the same COVID-19-related reasons prior to that date.
  • Emergency paid sick leave and EFMLA leave are not retroactive.
    • If the Employer closed a worksite prior to the April 1 effective date, the employee is not eligible for emergency paid sick leave or EFMLA leave, but may be eligible for unemployment compensation.
    • If the Employer closes a worksite after the April 1 effective date, but before an employee requests a leave, the employee is not eligible for emergency paid sick leave or EFMLA leave.  The employee may be eligible for unemployment compensation.
    • If the Employer closes a worksite after the April 1 effective date and while an employee is on emergency leave, the employee is no longer entitled to emergency leave benefits.  The employee may be eligible for unemployment compensation.
    • If the Employer furloughs an employee after the April 1 effective date, the employee is not eligible for emergency paid sick leave or EFMLA leave benefits, but may be entitled to unemployment compensation.
    • If the Employer reduces an employee’s hours, the employee cannot receive emergency paid sick leave or EFMLA leave benefits for hours they were previously scheduled to work; however, if a COVID-19-qualifying reason prevents an employee from working a full schedule, the employee is eligible for emergency paid sick leave and EFMLA leave benefits.
  • If the employee is unable to telework because of COVID-19-qualifying reasons, the employee may be eligible for emergency paid sick leave or EFMLA after April 1.
  • If the qualifying reason for emergency paid sick leave and EFMLA leave are the same, the employee may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. The paid sick leave covers the first two weeks of leave (or the employee may substitute accrued vacation, personal leave or sick leave under an employer’s policy) and the first ten workdays of the family medical leave.  After the first ten workdays have elapsed, the family medical leave provisions apply.
  • Emergency paid sick leave and EFMLA leave are not in addition to regular paid sick leave and FMLA leave – the employee must choose the type of leave to take.
  • Intermittent emergency paid sick leave and EFMLA leave may be taken if the Employer and the employee agree to it.
  • A small business with fewer than 50 employees may be exempt from the emergency leave requirements if it can establish, using criteria set forth in the FFCRA, that to provide these leaves would jeopardize the viability of its business.

For more information about the Families First Coronavirus Response Act, contact Becky DeCook, Co-Chair of the Employment Group.

ABOUT THE AUTHOR

Rebecca B. DeCook

Attorney