Department of Labor issues first Guidance on Families First Coronavirus Response Act

Matthew S. Veech

On March 24, 2020, the U.S. Department of Labor issued its first Guidance under the Families First Coronavirus Response Act (FFCRA).  The Guidance provides a Fact Sheet for Employees, Fact Sheet for Employers, and Questions and Answers.  The full text of the Guidance can be found HERE on the Department of Labor website.

This Guidance has several noteworthy provisions.  In both Fact Sheets, the Guidance emphasizes that the leave provisions only apply if the employee is unable to work or unable to telework.  This text is highlighted in the Guidance.  Accordingly, if the employee is able to telework by performing their work from home they would not satisfy the “unable to work” requirement to qualify for paid leave under the FFCRA.  Additionally, within the Questions and Answers, the Guidance tells us that more details are coming related to the “small business exemption” and clarifies that employees are “capped” at 80 hours of paid sick leave for any combination of the qualifying reasons.  Here is the text of those two Q&As:

Q:  If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?
A: To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations. You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

Q:  May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?
A:  No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.

The FFCRA takes effect on April 1, 2020.