The U.S. Department of Labor (DOL) has issued its first set of guidance on the Families First Coronavirus Response Act (Act). According to a DOL press release, the department plans to issue guidance on a rolling basis. The guidance can be found here and includes a Fact Sheet for Employees, a Fact Sheet for Employers and a FAQ Sheet.

The biggest revelations from the guidance are as follows:

  • The Act takes effect April 1st, not April 2nd.
  • The DOL will be releasing a model notice on March 25th to be posted in the workplace.
  • The guidance contains a detailed breakdown of how to count to 500 employees for purposes of determining whether a business is subject to the Act. These provisions are too detailed to summarize here, but the DOL is determining the 500 employees as of the date the employee requests leave, and is using the joint employer and integrated employer tests that will be familiar to many.
  • Expanded FMLA and Paid Sick Leave runs concurrently for those out of work due to school/childcare facility closures for a total of 12 weeks of leave. The DOL specifically states as follows:

If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both – how do they interact? 

You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act. 

We will continue to monitor the latest guidance and provide relevant updates. If you have questions, please contact a member of the HSB Employment Law practice team.