DOL Posts Temporary Rule Issuing Regulations Under the Coronavirus Response Act

The Department of Labor (DOL) published a temporary rule issuing regulations to implement the Families First Coronavirus Response Act (FFCRA), which went into effect April 1. The new rule focuses on employee/employer provisions of the FFCRA, which includes two weeks (up to 80 hours) of paid sick leave and up to an additional 10 weeks of paid leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA).

The DOL bypassed the comment period that precedes most rulemakings, citing the rapidly evolving COVID-19 pandemic as “good cause” to forgo the comment period. The temporary rule went into effect April 1 and will expire Dec. 31. The DOL estimates that up to 61 million employees are potentially eligible for paid leave benefits under the FFCRA.

The temporary rule provides clarification for employers and workers on the recent paid sick leave expansion. Tracking the guidance that the DOL has rolled out through a series of FAQs since the FFCRA was passed on March 18, the temporary rule provides more robust insight on the contours of the FFCRA, including:

• Which small businesses are eligible for an exemption (and the criteria for meeting that exemption)
• Clarification on which “health care providers” can elect to exempt employees for the benefits of the FFCRA
• An explanation of how EFMLEA leave can be combined with FMLA leave, among other details

Relatedly, the DOL also has issued separate guidelines on the mandated posting requirements of employee rights under FFCRA. Under the circumstances of the COVID-19 outbreak, the DOL is permitting the notice to be posted for employees through e-mail, direct mail or on a company’s website if it cannot be currently posted in the workplace. A copy of the DOL’s FFCRA notice can be accessed here.

Please contact Jason Pill, Austin Laurienzo or Phelps’ Labor and Employment team if you have any questions or need compliance advice and guidance. For more information related to COVID-19, please also see Phelps’ COVID-19: Client Resource Portal.