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DOL Issues Temporary Rule: "Paid Leave under the Families First Coronavirus Response Act"

April 2, 2020

On April 1, 2020, the U.S. Department of Labor (DOL) released a temporary rule to promulgate temporary regulations for the implementation of the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA), both part of the Families First Coronavirus Response Act (FFCRA) which took effect April 1. The rule provides a comprehensive summary for the administration of both the EPSLA and EFMLEA. Generally, the rule summarizes and formularizes the piecemeal guidance the DOL has been providing since the passage of the FFCRA.

Among other things, the rule makes clear that an employee may not be required to use employer paid leave prior to the use of the mandated paid sick leave, but an employee may elect to use, or an employer may require that an employee use, employer-provided paid accrued leave, such as vacation or other paid leave, concurrently with the expanded family and medical leave. The regulations permit intermittent leave for certain types of leave with agreement from the employee and the employer. The rule also defines certain key terms such as “healthcare provider,” provides expanded guidance on calculating “partial pay” and counting employees, outlines notice requirements and makes clear that employers are required to retain all documentation of FFCRA emergency paid leave requests for four years, regardless of whether leave is granted or denied. According to the DOL, small-sized employers seeking an exemption from the law will need to sufficiently demonstrate, through documentation, that such leave would jeopardize the viability of the business. The rule, which is not yet final and is subject to change before publication in the Federal Register on April 6, 2020, will expire on December 31, 2020.

The DOL’s rule can be found here.

Additionally, the DOL will post a recorded webinar on Friday, April 3, 2020 to provide employers with a more in-depth description to aid them in learning more about the FFCRA. To view the webinar and for more information about COVID-19 and the workplace, including fact sheets, questions and answers and posters please click here.

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

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