Hunton Employment & Labor Perspectives

The Department of Labor has released a new set of “Questions and Answers” for employers under the Families First Coronavirus Response Act (“FFCRA”).  The guidance supplements the temporary rule issued by DOL in April; final regulations are still forthcoming.

FFCRA provides (1) paid sick leave and (2) paid family medical leave under certain circumstances created by COVID-19.  We previously posted about these forms of leave in March, April, and June.  See our entries here, here, here, here, and here.

The Q & As aim to clarify application of the FFCRA, and to address common scenarios that have been causing uncertainty for employers.  The guidance runs to forty-nine (49) printed pages, answering ninety-seven (97) questions, in the following categories:  “Definitions,” “Eligibility,” “Coverage,” “Application,” and “Enforcement.”

The new FAQs focus heavily on how employers can reopen closed businesses in accordance with FFCRA’s leave requirements.  Among other things, it addresses the increasingly common scenario of returning furloughed employees to work, and explains how their leave entitlement should be counted in conjunction with the FMLA.

DOL also makes clear that employers may not use the possible taking of FFCRA leave as a negative factor in an employment decision, such as whether to return someone from layoff.  Employers also may not discriminate or retaliate against anyone for availing themselves of FFCRA protections.

Employers facing specific areas of uncertainty under the FFCRA may find clarification and aid in these new FAQs.  But, businesses should continue to monitor the DOL guidance for further updates or changes, and should stay tuned for the eventual implementing regulations.