Client Alerts

DOL Issues Families First Coronavirus Response Act Guidance

By: William D. Edwards, Stephanie E. Harley and Jonathan R. King

About: Employment & Labor

March 26, 2020 – Earlier this week, the U.S. Department of Labor (“DOL”) issued new guidance regarding the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”) that the president signed into law on March 18, 2020. The paid leave provisions of the FFCRA include the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). For more information, see Ulmer’s client alert and webinar for a detailed summary of the EFMLEA and EPSLA.

The DOL’s new guidance includes the following documents:

Importantly, this new guidance does not take the place of the regulations that the DOL is expected to publish in the near future. Here is a summary of the new guidance:

FFCRA Q&A

While the Q&A answers some important questions, there are still many questions left unanswered, including whether the DOL will define “emergency responder,” expand the Family and Medical Leave Act’s definition of “health care provider,” and exclude specific health care employers and their staffs (i.e., long-term care and skilled nursing facilities) from coverage under the FFCRA.

Employee Rights Poster and Frequently Asked Questions Regarding Notice Requirements

We recommend that employers air on the side of caution by posting the notice in as many locations as necessary to ensure that the notice is easily visible to all employees.

Field Assistance Bulletin 2020-1

Importantly, footnote 3 to the first sub-bullet, above, explains how employers with insufficient cash flow can delay making payments for EMFLEA and EPSLA paid leave:

“For purposes of this non-enforcement policy, employers who are eligible for tax credits but who have insufficient cash flow should make payment of sick leave or family leave wages as soon as possible, but not later than seven 7 calendar days after the employer has withdrawn an amount equal to the required paid sick leave and expanded family and medical leave wages from the employer’s Federal payroll tax deposits or, to the extent such deposits are not sufficient, has received a refund of the credit amount from the IRS to cover the required wages.”

Although the footnote lacks detail, it should be a welcome relief to employers who continue to operate but are short on cash because of the devastating economic impact caused by COVID-19.

As noted above, the DOL has yet to issue regulations implementing the EFMLEA and EPSLA. Employers desperately need the regulations to develop their policies and communicate to their employees.

Ulmer’s Employment & Labor Practice Group is closely monitoring developments related to the EFMLEA and EPSLA, and expects the DOL to publish the regulations prior to the April 1 implementation date. Please reach out to our attorneys if you have any questions.