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On April 1, 2020, the U.S. Department of Labor’s Wage and Hour Division posted temporary regulations for the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) to provide employers with guidance to administer these two new paid leave laws under the Families First Coronavirus Response Act (FFCRA). The rule became operational on April 1, 2020 and is set to expire on December 31, 2020.  The final rule (29 CFR § 826) officially published in the Federal Register today, April 6, 2020.

FFCRA, as amended by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), authorizes the Secretary of Labor to issue regulations “as necessary, to carry out the purposes of this Act, including to ensure consistency” between the EPSLA and the EFMLEA. This blog attempts to highlight only some of these rules.  Other posts on the requirements of FFCRA, including DOL guidance to date, can be found at the McLane Middleton’s Coronavirus Resource page.

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As part of its ongoing effort to prevent, prepare for, and respond to the coronavirus pandemic, the U.S. Department of Labor (DOL) issued temporary regulations to implement emergency leave benefits established under the Families First Coronavirus Response Act (FFCRA).  These implementing regulations (29 CFR § 826) are available from the DOL at https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf.

While the FFCRA greatly expands emergency leave, including emergency paid sick leave, benefits, employers may elect to exclude certain “health care providers” and “emergency responders” from these provisions of the FFCRA.  The following provides a brief summary of those employees who may be exempt.

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Throughout the past week, the USDOL has continued to update its guidance into how employers will be expected to manage the paid sick and paid family and medical leave benefits, which will become available to eligible workers as of April 1, 2020, the effective date of the Families First Coronavirus Relief Act (“FFCRA” or the “Act”).

A model notice which employers can use to discharge their obligation to inform employees of their rights under the FFCRA is available here. No specific Certification or Designation Forms have been provided, so employers may create their own forms for the time being.

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In light of the federal Families First Coronavirus Response Act, which will go into effect on April 1, 2020, companies should consider implementing a new paid sick leave policy.   Below, for reference only, is a sample policy to consider.   Any new paid sick leave policy should be tailored to each particular workplace, and this policy is not intended to serve as, or to replace, legal advice on this important subject.

SAMPLE Emergency Paid Sick Leave Under the Families First Coronavirus Response Act Policy:

In light of the COVID-19 epidemic, the recently-implemented federal Families First Coronavirus Response Act (the “Act”) and our Company’s commitment to the safety and well-being of its employees and other members of the community, the Company has adopted this temporary Emergency Paid Sick Leave (“EPSL”) Policy (the “Policy”).  Under the Policy, employees may take a paid leave of absence, up to a maximum of two weeks of paid sick leave in addition to other paid leave provided by the Company to the employee, subject to the terms and conditions outlined below:

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On March 18, 2020, the President signed into law The Families First Coronavirus Response Act (FFCRA).  This new federal law includes the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act.  Updated guidance on the FFCRA is available from the U.S. Department of Labor at https://www.dol.gov/agencies/whd/pandemic.

Q:  What paid leave benefits are required under the new Families First Coronavirus Response Act?

A:  Paid family and medical leave and paid sick leave related to COVID-19.

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On March 18, 2020, the President signed into law The Families First Coronavirus Response Act (the “Act”.  This new federal law will provide employees with emergency paid family leave and paid sick leave related to COVID-19.

These paid leave laws apply to all employers with fewer than 500 employees. The laws take effect on April 1st and expire on December 31, 2020.  The Secretary of Labor is expected to issue guidelines to assist employers in complying with these new legal requirements in the coming weeks.

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UPDATE: March 23, 2020

Governor Baker announced a statewide “Stay at Home” order, which will begin , March 24 at noon and last at least until April 7. All non-essential businesses will be ordered to cease operations for the same time period.

Click here to view COVID-19 Essential Services – Exhibit A of the order …

  1. What is the difference between a furlough and a layoff or termination?

Furloughs are time off from work without pay, such as a temporary reduction in an employee’s days or hours of work.  Furloughs are different from layoffs or terminations.  During furloughs, workers remain employed and sometimes work a reduced schedule.  Layoffs or terminations involve a separation from employment.

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On March 18, 2020, the Equal Employment Opportunity Commission  issued new guidance regarding the effect of the COVID-19 pandemic on employers’ obligations not to discriminate against and to provide reasonable accommodations to disabled employees under the Americans with Disabilities Act and the Rehabilitation Act.  The guidance states that, while employers must continue to comply with the ADA and the Rehabilitation Act, those laws do not interfere with or prevent employers from following the guidelines and suggestions from the Centers for Diseases Control and Prevention or state or local authorities relating to COVID-19.
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