New DOL Rules on Families First Act

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The DOL has issued new rules providing further instructions and guidance on the Families First Act. 

Please follow the link here to see the entire text of the new rules. https://www.dol.gov/agencies/whd/ffcra  It is a long and complex document, so as always, please don’t hesitate to reach out with specific questions.

We have fielded a significant number of questions on this Act, andbelieve the below bullet points address the most frequent questions we have received:

1. Employers must obtain documentation from employees certifying the employee’s need for leave under either Emergency Sick Leave or the Emergency FMLA.

a. Such documentation must include a signed statement from the employee containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.

b. An employee must provide additional documentation depending on the COVID-19 qualifying reason for leave.

i.  An employee requesting paid emergency sick leave due to an individual quarantine must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.

ii.  An employee requesting paid emergency sick leave due to a doctor-advised quarantine must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.

iii.  An employee requesting paid emergency sick leave to care for an individual subject to quarantine or isolation must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request.

iv.  An employee requesting to take paid emergency sick leave or expanded family and medical leave to care for his or her child must provide the following information: (1) the name of the child being care for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

2. The Emergency FMLA entitlement is not an additional entitlement to other FMLA leave.  In other words, an employee who was otherwise eligible for FMLA is entitled to 12 weeks total, to include both regular FMLA and Emergency FMLA.  If an employee has already used their 12 weeks of FMLA, they are not entitled to additional Emergency FMLA.

3. A small employer (fewer than 50 employees) is exempt from the requirement to provide leave to an employee to care for the employee’s son or daughter whose school is closed or whose childcare provider is unavailable when: (1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or (3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

a. For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.

b. If a small employer decides to deny paid sick leave or expanded family and medical leave to an employee or employees whose child’s school or place of care is closed, or whose child care provider is unavailable, the small employer must document the facts and circumstances that meet these criteria to justify such denial. The employer should not send such material or documentation to the Department, but rather should retain such records for its own files.

Thank you,

Underwood Law Firm

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