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US DOL Issues Expanded Coronavirus Leave Law Guidance

March 31, 2020

As contemplated by the Families First Coronavirus Response Act (FFCRA), the United States Department of Labor continues to issue compliance assistance to employers and employees. The DOL, in its most recent updated guidance, adds more questions and answers to include topics such as the extent to which certain small businesses (less than 50 employees) can be exempted from the FFCRA's mandates, definitions for “Emergency Responders” and “Health Care Providers” in connection with who can be excluded from paid leave by the employer, the interaction between regular FMLA and FFCRA leave, and whether public sector workers can avail themselves of leave under the new law.

The new guidance clarifies that employers who have closed down non-essential businesses in response to government orders will not need to pay out FFCRA leave benefits. The guidance explains that employees can only take sick leave or emergency family and medical leave if they are unable to work or telework due to one of the six qualifying reasons listed. In order for employees to be “unable to work,” the employer must have work available for them to perform. Conversely, when an employer is closed because it is a non-essential business and there is no work to be performed, its employees would not be eligible for paid leave. Similarly, if an essential employer stays open but furloughs or lays off part of its workforce, whether due to business conditions or government orders, those corresponding employees would not be eligible for paid leave. Prior to any closure, leave must be paid for those eligible employees who took leave prior to the closure, provided it was on or after April 1.

The guidance also addresses intermittent leave under the FFCRA and provides circumstances when it can be used. Employers have some discretion in allowing intermittent leave when it is otherwise appropriate. However, an employee working on site cannot use intermittent leave; rather, it must be taken consecutively so that sick or potentially infected employees stay out of the workplace to avoid infecting others.

Please see the questions and answers from the DOL, which can be found here.

If you have any questions please contact a Richards Layton Labor and Employment attorney.

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