One significant interpretation provided in the regulations is whether workers are entitled to paid leave if they meet the criteria ( e.g., they have COVID-19 or are subject to a government-imposed quarantine order), but their employer is not open for business. The answer is that, unless their employer has work for them that they could perform absent their COVID-19 issue, they are not entitled to sick or family leave under FFCRA. (Section 826.20(a)). That is, only employees of employers that are open for business and have work available, either through telework or otherwise, are eligible for this leave. The DOL's interpretation is that the paid sick leave provision is not intended to provide broad income replacement for workers affected by the pandemic, but to provide relief only to those workers who would be at work "but for" their own illness or the needs of someone they are caring for.

The regulations also clarify a myriad of other issues. Because they are 125 pages long and sometimes technical in their discussion of issues, it is not helpful to try and summarize them here.

 

However, if questions arise on the following key issues, you can find the answers at the link above, and at the section indicated below:

• how sick pay for part-time workers should be calculated (Section826.21(b));

• that the rate of pay for leave is calculated under the methods required by theFair Labor Standards Action (Section 826.25);

• that workers who do not work continuously for an employer may still meet the "30 calendar day" threshold for family leave if they were employed a total of thirty calendar days between March 1, and December 31, 2020 (Section 826.30(b )(1 )(ii); • that employers have complete discretion to exempt "health care providers"(Section 826.30(c));

• how to calculate the 500-employee threshold for employer coverage(Section 826.40(a));

• that employers with fewer than 50 employees may exempt themselves fromeither paid leave requirement if it "jeopardizes the viability of the business" (Section 826.40(b));1 • what notice and information employers must give their employers (Section 826.100);

• whether an employee is entitled to reinstatement after the leave is ended (Section 826. 130).

 

We will continue to provide updated information on this, and other COVID-19 developments that may affect you or our members as it becomes available.