Part 7 of our COVID-19 Issues for employers series concerns the U.S. Department of Labor’s new regulations implementing and interpreting the Families First Coronavirus Response Act. Check out the other six installments on the blog.
The Families First Coronavirus Response Act and its paid sick leave and expanded Family and Medical Leave Act provisions took effect on April 1, 2020. Also on April 1, the U.S. Department of Labor issued “Temporary Regulations” implementing the FFCRA and its paid sick leave / expanded family leave protections. You can find the temporary regulations here. They are “temporary” because they expire on December 31, 2020, along with the rest of the FFCRA.
The text of the regulations themselves begin on page 83 of the .pdf document linked above. The first 82 pages contain a summary of the regulations and address other administrative matters. The DOL’s preamble to the regulations is written in plain English. It’s a lot longer than the regulations, but the agency explains each section in detail.
As regulations, these are more legally significant than the “fact sheets” and other helpful information the DOL has published on its website. We discussed those in prior posts, such as this one right here. If there are any discrepancies between the DOL’s FAQ’s and fact sheets and these regulations, the regulations will control.
The DOL is skipping the usual process of “notice and comment,” when it publishes draft regulations, receives input, and possibly makes changes. The DOL also is implementing the regulations immediately, not after the normal 30-day waiting period. These actions are allowed under emergency circumstances like COVID-19, under the federal Administrative Procedure Act.
However, those who wish to offer opinions / feedback to the DOL, the DOL is hosting a “National Online Dialogue” about the FFCRA’s employment provisions. The DOL is holding the “dialogue” until April 10. You can sign up here.
Here is the table of contents of the regulations, which will be published at 29 C.F.R. Part 826, immediately following the “normal” FMLA regulations. Again, scroll down to page 84 of the .pdf linked above for the regulations themselves.
PART 826— Paid Leave under the Families First Coronavirus Response Act
826.20 Paid leave entitlements.
826.21 Amount of Paid Sick Leave.
826.22 Amount of Pay for Paid Sick Leave.
826.23 Amount of Expanded Family and Medical Leave.
826.24 Amount of Pay for Expanded Family and Medical Leave.
826.25 Calculating the Regular Rate under the FFCRA.
826.30 Employee Eligibility for Leave.
826.40 Employer Coverage.
826.50 Intermittent Leave.
826.60 Leave to Care for a Child Due to School or Place of Care Closure or Child Care Unavailability – Intersection between the EPSLA and the EFMLEA.
826.70 Leave to Care for a Child Due to School or Place of Care Closure or Child Care Unavailability – Intersection of the EFMLEA and the FMLA.
826.80 Employer Notice.
826.90 Employee Notice of Need for Leave.
826.100 Documentation of Need for Leave.
826.110 Health Care Coverage.
826.120 Multiemployer Plans.
826.130 Return to Work.
826.150 Prohibited Acts and Enforcement under the EPSLA.
826.151 Prohibited Acts and Enforcement under the EFMLEA.
826.152 Filing a Complaint with the Federal Government.
826.153 Investigative Authority of the Secretary.
826.160 Effect on Other Laws, Employer Practices, and Collective Bargaining Agreements.
Employers should carefully review these regulations along with the preamble explanations. The requirements differ in a number respects from traditional FMLA. Additionally, as stated, the regulations supersede the DOL’s guidance documents.