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The Department of Labor (DOL) recently modified its guidance regarding leave under the Families First Coronavirus Response Act (FFCRA). These changes pertain most significantly to the applicability of FFCRA leave to employees of health care providers and the intermittent use of FFCRA. The changes – which take effect on September 16, 2020 – are a response, in part, to a recent New York federal district court opinion invalidating some of the DOL’s prior guidance. (See here.)

Here’s what you need to know about the DOL’s new guidance:

Health Care Providers. The DOL narrowed the applicability of the FFCRA exemption for health care providers.  Under the new guidance, not all employees of health care providers are exempt from FFCRA. Only the following employees may be excluded: (1) licensed doctors of medicine, nurse practitioners, chiropractors, dentists, and others permitted to issue FMLA certifications under 29 C.F.R. 825.125; and (2) employees who provide diagnostic, preventive, or treatment services, or “other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This exemption includes, among others, nurses, medical technicians, and laboratory technicians. We recommend that health care providers seeking to exempt some employees from FFCRA talk to their legal counsel about whether the exemption applies.

The DOL encourages health care providers to minimize use of the exemption to the extent possible in order to prevent the spread of COVID-19. Employers may choose to allow some types of FFCRA leave (e.g., leave for employees with COVID-19 symptoms) and not others (e.g., childcare leave).
Continue Reading Department of Labor Narrows FFCRA Exemption for Health Care Providers and Affirms Guidance Regarding Intermittent Leave

On August 3, 2020, a federal judge in the Southern District of New York held that four provisions of the U.S. Department of Labor’s (DOL) Final Rule (the Final Rule) implementing the Families First Coronavirus Response Act (FFCRA) are invalid.  This ruling is limited for now, as the court did not issue a nation-wide injunction, but its reasoning could be applied in other jurisdictions around the country.  For that reason, employers should be aware that changes to FFCRA obligations may be forthcoming.

As we discussed in a previous post, the FFCRA obligates employers to offer sick leave and expanded family leave to employees who cannot work because of certain reasons related to the pandemic.  At issue here are two major provisions of the FFCRA: Emergency Family and Medical Leave Expansion Act (EFMLEA), which entitles employees to partially paid leave to care for a dependent child due to COVID-19 school or daycare closures, and the Emergency Paid Sick Leave Act (EPSLA), which requires employers to provide paid sick leave to employees who are experiencing one of six qualifying COVID-19-related circumstances.  (See here for additional information.)

After concluding that New York had standing to challenge DOL’s Final Rule, the court considered the validity of four provisions: the work-availability requirement, the definition of health care provider, the prohibition on intermittent leave, and the documentation requirements.
Continue Reading New York Federal District Court Rules Four Provisions of COVID-19 Paid Leave Rule Invalid

Employers facing changes in their business or broader economic downturns must find ways to respond and weather the storm.  Typically, this means cutting expenses, while maintaining their ability to operate.  For many (if not most) businesses, payroll is the single largest expense item.  And when business slows, employees are left with excess capacity and are…

The Families First Coronavirus Response Act (“FFCRA”) requires private companies with fewer than 500 employees, along with most public employers regardless of size, to post a notice summarizing the benefits available under the new law and directs the Department of Labor to prepare and publish a model notice. The Department issued its model notice yesterday.…

The U.S. Department of Labor (“DOL”) has updated its guidance on the Families First Coronavirus Relief Act (“FFCRA”), which was signed into law on March 18, 2020.  (A summary of the law is here.)  Regulations are coming in April.  In the meantime, the DOL’s current resources available are:

  1. A tip sheet for employees
  2. A

…

We are continuing to monitor developing issues facing employers due to the outbreak of COVID-19.  The latest is from Congress.

On March 13, the US House of Representatives passed the Families First Coronavirus Response Act, (the “Act”) to  provide for emergency paid sick and family and medical leave for some employees around the country.  Public agencies and employers with fewer than 500 employees are covered by the Act, and can apply for tax credits each quarter to recoup payments made under the Act.

Please note that the Act has not gone into effect yet and is not final.  The Senate must also pass the Act before it becomes effective, and the Senate is likely to make changes.  Subject to those changes, below is a summary of the important items for employers to know about the Act in its current state.

Emergency Family and Medical Leave

Employees are eligible for up to 12 weeks of paid family and medical leave under the Act if they have worked for an employer for at least 30 days, and are absent from work for one of the following reasons:
Continue Reading House of Representatives Takes Steps to Provide Paid Leave to Employees Absent due to COVID-19; Senate Must Still Act

On March 22, the Department of Labor (“DOL”) published a new proposed rule that would make several changes to current overtime law.  The proposed rule, which is not yet in effect, would require that:

  • Employees make at least $679 per week ($35,308 annually) to potentially be exempt from overtime. (The current requirement, which has been in place since 2004, is at least $455 per week or $23,660 annually.)
  • Employers be allowed to use nondiscretionary bonuses and incentive payments such as commissions that are paid at least annually to satisfy up to 10 percent of the salary threshold.
  • “Highly compensated employees” make at least $147,414 per year (compared with $100,000 under current law).
  • Going forward, the DOL commit to periodically reviewing and updating the minimum salary threshold (after a public notice and comment period).

Continue Reading Department of Labor Proposes Rule to Make More Employees Eligible for Overtime

Employers know that the salary rule for “white collar” exemptions from President Obama’s Department of Labor (“DOL”) was blocked by a federal court last year (we blogged about that here).  (UPDATE: A Texas federal court invalided the rule on August 31, 2017.)  That rule would have more than doubled the salary requirement for an overtime exemption.  Now, President Trump’s DOL has formally announced that it will not pursue that rule.  Instead, it is soliciting comments to draft its own rule.

Employers have an opportunity to weigh in on what, if any, changes should be made to the white collar exemptions.  The DOL’s request for information suggests it is seriously considering making at least some changes to the exemptions. 
Continue Reading Department of Labor Seeks Input on New Rules for White Collar Exemptions