On March 24th, the Department of Labor (“DOL”) published its guidance explaining how the Expanded Family and Medical Leave and Paid Sick Leave created under the Act will be implemented and enforced. Here is a link to the original discussion on the Act by CLG.
- According the to DOL, the Act will take effect on April 1, 2020, rather than April 2, which was widely regarded as the effective date.
- Small businesses with under 50 employees may qualify for an exemption if the burden of supplying the mandated leave will jeopardize the viability of my business as a going concern. The DOL’s guidance indicates that employers seeking this exemption document why the business meets the criteria set forth by the DOL (which have yet to be issued). Employers requesting the exemption should not send any material to the DOL, but merely prepare the documentation. Until there are further regulations, which should issue prior to April 1, businesses that believe they will qualify for the exemption should beginning preparing financial documentation to support their claims.
- To calculate the hours to be paid to a part-time employee with a varying schedule, the employer may average the previous six-months of hours. In the event the employee has not worked for the employer for six months, the hours should be based on the average hours per day the employee was scheduled to work over the term of the employment.
- Employees can stack the two leaves. Under the Expanded FMLA portion of the Act, the employee is entitled to 12 weeks of leave to care for their child whose school or childcare facility is closed, but is only paid for weeks 3 through 12. The Paid Sick Leave Portion of the Act, employees are entitled to 2 weeks of paid sick leave. The DOL has indicated that an employee can receive the paid sick leave during those unpaid 2 weeks of expanded FMLA leave, for continuous coverage over all 12 weeks.
- There will be a temporary period of non-enforcement for the first 30 days after the Act is effective where an employer has acted reasonably and in good faith to comply with the Act. Good faith is being defined as existing where the violations are remedied and the employee is made whole as soon as practicable, the violation was not willful, and the employee provides the DOL with a written commitment to comply with the Act in the future.
- Employers must post information about the Act in the workplace. The DOL will release a poster today (March 24th) that is to be used.
For more information, feel free to contact us.
DOL Official Guidance:
About the Author
Lisa M. Molsbee, J.D. is a Director at Christensen Law Group, PLLC. She is an expert in employment matters, insurance, subrogation, appellate matters and litigation. You can read more about her and her legal experience here.