Alert – DOL Publishes Paid Leave Regulations

Volume: 19 | Issue: 16
April 3, 2020
Just when you thought that paid leave under the Families First Coronavirus Response Act (FFCRA) could not get more complicated, the U.S. Department of Labor (DOL) has published regulations interpreting the FFCRA’s paid leave provisions. There are many surprises here, which may cause employers to reevaluate paid leave. A few important points to immediately note are:
1. The DOL’s position has changed for certain regulations. As such, if you were relying upon a question the DOL answered in its FFCRA FAQs, be sure to determine whether the same position is being taken in the regulations.
2. To determine whether an employer is required to provide paid leave, the employer must count all employees employed at the time the employee would take leave. The employer cannot count workers who have been laid off or furloughed and have not subsequently been reemployed. Thus, an employer who has laid off a portion of its workforce may be covered by the paid leave provisions by the time an existing employee needs paid leave.
3. Government stay-at-home orders and recommendations may qualify for paid leave. Because the DOL has adopted a very broad definition of “subject to a quarantine or isolation order,” a government order to stay at home and an advisement for certain categories of citizens (e.g., of certain age ranges or of certain medical conditions) to stay at home, isolate, or quarantine can be covered reasons for paid sick leave.
4. However, the DOL has limited paid sick leave to instances where the employee would be able to work or telework but for being required to comply with a stay-at-home order. If the employer does not have work for the employee because of a downturn in business or a government order to close, an employee is not entitled to paid sick leave. Instead, the employee himself must be subject to a stay-at-home or quarantine order and the employer must otherwise have work for him to do.
5. The DOL agrees with the IRS that paid sick leave or expanded FMLA leave because of school closure/child-care unavailability is limited to one parent.
For more detailed information about the regulations, check the Worklaw Network Blog and contact a KZA attorney. Additionally, the DOL will post a recorded webinar on Friday April 3, 2020 to provide training on the regulations.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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