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DOL Issues Second FAQs: Provides More Guidance to Employers on Paid Leave Laws

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R. Douglas Taylor, Jr.
March 30, 2020

On March 26, 2020, the Department of Labor (DOL) issued a second set of FAQs to address some of the fundamentally important questions that employers have been asking about new paid sick and FMLA leave under the Families First Coronavirus Response Act (FFCRA), which goes into effect on April 1, 2020.

The second FAQs elaborate in some areas on the first set of FAQs issued by the DOL and in other areas provide a first look at the agency’s thinking about how the new paid leave laws are intended to be implemented by employers. Some of the key questions addressed by the new FAQs are the following:

Which employers must be included in the count to determine whether you are above or below the 500-employee threshold;

What small employers (fewer than 50 employees) must do to take advantage of the small business exemption to providing paid sick and FMLA leave;

How to calculate the number of hours of paid sick leave to which an employee may be entitled;

How to calculate the applicable rate of pay for paid sick and FMLA leave;

Whether paid sick and FMLA is retroactively applicable prior to April 1;

What records must employers keep related to paid sick and FMLA leave provided to employees;

Whether or under what circumstances can paid leave be used intermittently;

Whether an employee may use paid sick leave and paid FMLA leave concurrently;

What happens to an employee’s paid leave entitlement if the employer’s workplace closes or employees are furloughed; and

Whether or under what circumstances employers are required to continue an employee’s health coverage during paid leave?