New Families First Guidance from Department of Labor

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The US Department of Labor (DOL) has provided additional information and guidance regarding the emergency leaves provided under the Families First Coronavirus Relief Act (FFCRA).  The Q & A page that provides the guidance may be found at

  • The following are some highlights of the new guidance:
  • The Emergency FMLA (EFMLA) is not in addition to FMLA.  If an employee has used unpaid FMLA in the last 12 months, that reduces the amount of EFMLA available.
  • Both Emergency Paid Sick Leave and EFMLA require job restoration, but do not protect against layoffs or other separation that would have occurred regardless of the leave.
  • If an employee is teleworking, and then experiences a triggering reason for leave, the employee is entitled to the paid leave.
  • Intermittent leave is generally permissible but not an employer requirement.  There are many details involved, please inquire for follow up.
  • If the employer closes while the employee is on leave, the employee is no long eligible for the leave and may access unemployment.
  • Employer may agree to but is not required to allow use of other leave benefits to “top off” the leave payments to the employee.
  • Employer may not require employee to use other available benefits and those benefits remain available, with the exception of FMLA.  An employee is not entitled to the full EFMLA and FMLA in the same year.

As to the potential exemption available for businesses under 50 employees, the DOL’s Q&A explains that a small business may claim this exemption if an “authorized officer” of the business has determined that:

  • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

We will continue to monitor these developments and additional guidance.

About the Authors

Karen Kalzer

Ms. Kalzer practices employment and education law with an emphasis on defending complex litigation for communities of faith, non-profits, schools and private employers.

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