Department of Labor Hosts Call on the Families First Coronavirus Response Act’s Paid Leave Provisions

March 20, 2020 (WASHINGTON INSIDER ALERT) - On March 20, the Department of Labor (DOL)’s Wage and Hour Division (WHD) hosted a call to discuss the Family and Medical Leave Act (FMLA) extension leave and emergency paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA). The call allowed the WHD to explain the basic provisions of the paid leave programs created through the FFCRA, while also allowing stakeholders to ask questions and comment on the provisions.

The FFCRA was signed into law by President Trump on March 19. In it, two emergency paid leave programs — paid FMLA extension leave and paid sick leave — are mandated to be used by all private-sector employers with 500 or fewer employees with a few exceptions (see the Littler summary for a good overview of these provisions). Since the introduction and ultimate passage of the bill, however, there has been confusion on how these provisions will actually be implemented and how they will impact small businesses across the nation during this crisis.

The WHD hosted the March 20 call to hear questions, suggestions and comments from stakeholders who will be impacted by the bill. The call allowed for associations and small business owners to express any confusion or concern for certain aspects of the law before final rules implementing the law are placed.

Most of the questions came from small businesses, associations and HR professionals who were wondering what impact these provisions would have on the viability of their businesses through the crisis. Some questions recorded on the call were as follows:

• What constitutes 500 employees?
• Which employees or former employees are covered?
• What types of employees are considered healthcare providers and emergency responders that are exempt from the leave requirements?
• How can small employers under 50 employees demonstrate undue hardships placed on them by requiring paid leave as mandated in the law?
• What if we need to let go employees who are taking leave due to the ability of our business to survive?
• When can employees use the emergency paid FMLA leave? Can employees take paid FMLA leave on an intermittent basis and split or double that time with a spouse?
• What type of certification or documentation can employers require employees to provide when they take paid FMLA or sick leave? Will there be any penalties for fraudulent use of paid leave?

Some of the questions also prompted concern regarding student employees at colleges, such as whether these student employees count toward the 500-employee threshold or if they are covered for paid leave from the universities and colleges that hired them.

The DOL did not take the time to answer any of these questions, but rather let participants know that these questions and concerns would be considered while it  works to create rules and regulations that will finalize the implementation and enforcement of the law. The Department said it anticipates holding more calls in the near future to further examine concerns voiced by stakeholders on the March 20 call and discuss how it is working to integrate stakeholders’ suggestions into the final regulations.

As the WHD and other divisions at the DOL continue forward with regulations for this law, CUPA-HR will continue to monitor for any updates and keep you apprised of important changes to the bill.