As the April 1 effective date for the Families First Coronavirus Response Act (FFCRA) paid leave requirements rapidly nears, the Department of Labor (DOL) continues to update its compliance guidance for covered employers. As a reminder, the FFCRA’s leave provisions — which mandate paid sick leave and paid expanded Family and Medical Leave Act (FMLA) leave for qualifying needs related to COVID-19 — apply to private employers with fewer than 500 employees and to many public sector employers, regardless of size. More information about the FFCRA is available in our initial post about the FFCRA and in our subsequent posts about DOL’s initial guidance (here) and about the tax credit available to employers who provide FFCRA leave to their employees (here).
Covered employers should take note of two recent developments:
First, DOL has issued a corrected poster, which covered private and non-federal public sector employers can use to satisfy the FFCRA’s notice requirements. DOL has updated the poster to correct an error regarding the amount of pay that will be available to employees taking FFCRA leave due to school closures or the unavailability of a childcare provider. Employers who downloaded the prior version of the poster should download the updated version, available here, or on DOL’s website, which also includes a poster for federal employers.
As explained in our earlier post, each covered employer must post a notice of FFCRA requirements “in a conspicuous place on its premises,” and employers “may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.” Where employees are working remotely, we believe employers should follow one of the stated alternative methods in addition to posting on the premises.
Second, DOL expanded its FFCRA Q&As yesterday to address several important questions about FFCRA leave, including:
- whether employees on furlough or not working due to office closure are eligible for FFCRA leave (the answer is no, regardless of whether the furlough or closure occurs before, on, or after April 1);
- when an employee is “able” or “unable” to telework (“able” to telework means the employer has work for the employee to do and permits telework, and the employee can do the work remotely, including when the employer and employee agree that the work can be done outside normal hours; “unable” to telework means the employer has work for the employee and permits telework, but the employee cannot perform the assigned work or work the normal or otherwise agreed upon hours remotely due to a qualifying COVID-19 related reason);
- whether FFCRA leave may be taken intermittently (yes, in some circumstances, if the employer and employee agree to the schedule); and
- whether employees can supplement FFCRA leave with other employer-provided paid leave (yes, but only if the employee elects to do so and the employer agrees).
The Q&As also address several other topics, such as the documentation that employers must require when an employee requests FFCRA leave; the interaction of FFCRA leave and unemployment insurance benefits; whether overtime hours are included in calculating leave; and how employers that are part of a multiemployer collective-bargaining agreement can comply with the FFCRA.
DOL may provide additional informal guidance in the upcoming days, and DOL regulations are expected in April. Stay tuned to both the DOL website and the Hogan Lovells blog, All in a Day’s Work, for further developments, and consult an author of this post or another Hogan Lovells attorney with whom you work for assistance modifying your policies and procedures to comply with the FFCRA.