U.S. Department of Labor Publishes Guidance for Paid Sick Leave and Paid FMLA Compliance

On March 24 and 25, 2020, the U.S. Department of Labor issued guidance and materials related to the Families First Coronavirus Response Act (“FFCRA”). The following are some important highlights from the guidance provided by the DOL:

• The FFCRA, including the Emergency Paid Sick Leave Act and Expanded Family and Medical Leave Act, will go into effect April 1, 2020. (It was previously believed that the effective date would be April 2, 2020.)
• The Department of Labor will not begin enforcement efforts under the FFCRA until April 17, 2020. This means that, prior to April 17, 2020, the Department of Labor will not bring enforcement actions against any public or private employer for violations of the FFCRA, provided that the employer has made reasonable, good faith efforts to comply with the FFCRA.
• When calculating the amount of paid sick leave or paid FMLA leave due to employees compensated on a commission, tip, or piece rate basis, the Department of Labor guidance provides that the regular rate of pay used to calculate the employee’s paid leave is the average of the employee’s regular rate (including commissions, tips, and piece rates) over a period of up to six months prior to the date on which the employee takes leave.
• The Department of Labor has created a notice, which employers are required to: (1) post in a conspicuous location in their workplace; (2) send to all employees via mail or email; or (3) post on their website or intranet. Employers can obtain free copies of the notice by contacting the Department’s Wage and Hour Division at 1-866-4-USWAGE, or downloading a copy of the notice from this link:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

• In addition, the Department of Labor intends to issue additional guidance for small employers (under 50 employees) to apply for an exemption from the Expanded FMLA portion of the FFCRA. That guidance is still forthcoming.

The full Department of Labor guidance can be found at the below links:

https://www.dol.gov/newsroom/releases/whd/whd20200324

https://www.dol.gov/agencies/whd/pandemic[1]

[1] The Question and Answer articles on the DOL website, titled “COVID-19 and the Family and Medical Leave Act Questions and Answers” and “COVID-19 and the Fair Labor Standards Act Questions and Answers” do not appear to actually contain any pertinent information related to the FFCRA or COVID-19.