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Benefits

DOL Provides FAQ Guidance and FFCRA Non-Enforcement Policy on COVID-19 Webpage

EBIA  

EBIA  

DOL Webpage: COVID-19 and the American Workplace; Families First Coronavirus Response Act: Questions and Answers; COVID-19 and the Family and Medical Leave Act Questions and Answers; Field Assistance Bulletin 2020-1 (Mar. 24, 2020)

DOL Webpage

FFCRA FAQs

FMLA FAQs

FAB

The DOL’s Wage and Hour Division has launched a website that will serve as its gateway for information and guidance to employers and employees about the COVID-19 emergency on matters within its jurisdiction, including the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA). The website currently includes fact sheets, FAQs, posters, and a Field Assistance Bulletin (FAB) that provides a temporary DOL non-enforcement period for the FFCRA. Here are highlights of particular interest to plan sponsors and administrators:

  • FFCRA FAQs.
    • Paid Leave Effective Date. The FAQs state that the FFCRA’s paid sick and family leave (“paid leave”) provisions are effective April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020 (see our Checkpoint article on the FCCRA). They are not retroactive, and any leave provided before that date will not be considered leave provided under the FFCRA.
    • Covered Employers. When determining coverage under the FFCRA, whether an employer has fewer than 500 employers will be determined at the time an employee’s leave is taken. Employees on leave, temporary employees who are jointly employed, and day laborers from a temp agency will all need to be counted. Corporations typically will be treated as separate employers, but different rules apply if the entities are joint employers under the FLSA or meet the integrated employer test under the FMLA. The FAQs affirm that the criteria for a small employer exemption will be addressed in forthcoming regulations.
    • Hours Counted. When calculating the amount of paid leave due under the FFCRA, an employee’s hours must include normally scheduled overtime (subject to the FFCRA’s maximum of 80 hours in a two-week period for paid sick leave). If a full-time employee’s schedule varies, an average can be calculated using the same method that is used for part-time employees.
    • Rate of Pay. For purposes of the FFCRA, an employee’s regular rate of pay is the average of the employee’s regular rate for “up to” six months prior to the date the leave begins. A total compensation averaging method is also provided.
    • Sick Leaves Cannot Exceed Statutory Maximum. Employees cannot collect more than the statutory maximum by taking paid sick leaves for different purposes. However, employers cannot deny employees sick leave under the FFCRA on the grounds that they provided leave for the same reasons prior to the effective date of the paid leave provisions, April 1, 2020.
  • FMLA FAQs. Despite their title, the FMLA FAQs are not COVID-19-specific, and address unpaid leave associated with any kind of flu that can be taken under long-standing FMLA rules. The FAQs explain that FMLA covered employers must provide employees job-protected, unpaid leave for specified family and medical reasons, which may include the flu where complications arise that create a “serious health condition” as defined by the FMLA. Leave taken by an employee for the purpose of avoiding exposure to the flu would not be required under the FMLA. The FAQs remind covered employers that employees on FMLA leave are entitled to continue group health plan coverage under the same conditions as if they had been continuously employed during the leave period. The FAQs also remind employers that employees seeking to use FMLA leave may be required to provide certain documentation and a 30-day advance notice if the need to take FMLA leave is foreseeable and notice is practicable.
  • FFCRA Non-Enforcement FAB. The DOL has adopted a non-enforcement policy for FFCRA violations between March 18, 2020, and April 17, 2020. During that time, DOL enforcement actions will not be brought against employers that have made “reasonable, good faith efforts to comply” with the FFCRA. That condition will be deemed met only if violations were not willful and are remedied as soon as practicable, and the employer supplies a written commitment to comply in the future.

EBIA Comment: The agencies are moving quickly to expand their resources in response to the needs of employers and employees, particularly with respect to the new sick and family leave mandates under FFCRA. These resources significantly expand our understanding of the FFCRA and its implications, and the FMLA (and FLSA) issues that may arise during the COVID-19 emergency. While this is a lot to digest, there is more to come (including another round of legislation), so employers and advisors will want to quickly identify the aspects of this guidance that are most relevant to their situation and prepare for future guidance and legislation. For more information on the underlying requirements, see EBIA’s Fringe Benefits manual at Section XXII.G (“Other Laws Affecting Vacation/PTO Plan Design”). See also EBIA’s Group Health Plan Mandates manual at Section XVII (“Family and Medical Leave Act (FMLA)”).

Contributing Editors: EBIA Staff.

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