Department of Labor Offers Further Clarification to Families First Coronavirus Response Act (FFCRA)

With the federal Families First Coronavirus Response Act (FFCRA) taking effect on Wednesday, April 8, employers are mobilizing as quickly as possible to digest and implement the new federal leave requirements. However, just this week, the United States Department of Labor (DOL) issued a new set of temporary rules interpreting the emergency paid leave benefits. These new rules provide additional guidance on a variety of aspects of FFCRA, including requirements for exemptions for small businesses, first responders, and healthcare workers, job restoration issues, and an array of other topics.

The DOL’s full 124-page interpretation guide is available here as a PDF or by clicking on the following link:

Critically, the new rules expand the definition of a “quarantine” or “isolation” order to broadly cover any local, state, or federal “Stay at Home” or “Shelter in Place” Order. This means that employers with fewer than 500 employees must provide at least 80 hours of Emergency Paid Sick Leave (EPSL) to any employee who is unable to work as a result of such an order. The DOL’s rule deviates from the earlier conventional wisdom that orders to shelter in place do not fall within the CDC’s definition of a “quarantine” or “isolation” order. Thus, with Stay at Home Orders now in place in most states across the country, the impact of this new rule is expected to be significant, and employers should update their policies accordingly.

To clarify, the employee’s reason for using the leave must be directly related to the Stay at Home Order itself in order to qualify for EPSL. For example, if an employee cannot work or telework because the Stay at Home Order itself orders your business closed, or it specifically prohibits that employee’s specific type of work, that employee may be eligible for two weeks of paid EPSL. On the other hand, if your business is allowed to operate during the Stay at Home Order, even on a limited basis, employees who are unable to work due to an overall lack of business or customer demand will not qualify for EPSL. This is because under those circumstances the employee is unable to work as a result of a work slowdown rather than the Stay at Home Order itself. The DOL explains, this holds true even if the Stay at Home Order is the very reason for the substantial business slowdown.

Given some of these nuances to the new DOL rule, clients are advised to exercise caution in offering EPSL for employees who are unable to work due to a Stay at Home Order and are strongly encouraged to discuss this specific type of leave with counsel before relying on it. Unless EPSL is provided for a legally qualifying reason, the employer may be unable to recoup the FFCRA tax credit for providing this leave.

The DOL’s rules regarding FFCRA are evolving weekly. Our CH& attorneys are staying abreast of these changes, so we can provide you with updated information as it becomes available. We encourage all our clients to be prepared to update their leave policies as the DOL releases new guidance on these FFCRA requirements. As always, we are available to assist you with any questions you may have about these new DOL rules.

Cairncross & Hempelmann Employment Group

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice.