U.S. COVID-19: As the FFCRA Goes Live, the DOL Continues to Publish Revised and New Guidance for Employers
April 27, 2020
Authored by: Christy Phanthavong and Lily Kurland
Although the federal Department of Labor (“DOL”) declared April 1 – 17 to be a temporary period of non-enforcement of the Families First Coronavirus Response Act (“FFCRA”), the DOL was far from idle during that period. To the contrary, the DOL hosted an FFCRA webinar, published versions of the required FFCRA poster in additional languages, and actively encouraged employers and employees to become familiar with the FFCRA through posts on social media. Importantly, the DOL also provided key revised and new guidance for employers by: (1) issuing technical corrections to the temporary rule; and (2) posting additional informal questions and answers (the “Q&A”).
As described below, this new guidance provides much-needed clarity on key issues, especially since the period of non-enforcement is now over.
Interplay Between the FFCRA and Employer Paid Leave Policies
Although the rules remain complicated and not entirely clear, there is now more information regarding whether and when an employee may choose, or an employer may require, leave under an employer’s existing paid leave policies to be used before, concurrently with, or as a supplement to, the use of leave under the Paid Sick Leave (“PSL”) and Emergency FMLA (“EFMLA”) provisions of the FFCRA.
In this context, “concurrently” means “to cover the same hours as.” In other words, to the extent various types of leave run concurrently, then the employee’s leave entitlement is used / reduced under both types of leave at the same time. “Supplement” means that paid leave under an employer’s