On April 1, the paid leave requirements of the Families First Coronavirus Response Act took effect.
Prior to April 1, the DOL issued both a required employer notice and a series of questions and answers related to the required employer notice under the Act: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf and https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions. The IRS also issued a series of FAQs outlining required employer documentation of the need for leave https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs (see FAQ 44 – 46). As the DOL worked on its regulations under the Act, it issued a series of expanding (and sometimes edited and updated) questions and answers https://www.dol.gov/agencies/whd/pandemic/ffcra-questions related to the Act. In fact, some of those edits were significant and substantive.
Finally, on Wednesday afternoon, April 1, the DOL rolled out its much-anticipated regulations related to the Act https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf. The regulations generally track the FAQs. Notably, however, the DOL changed course on an issue that the DOL previously (but indirectly) addressed. Specifically, in the regulations, the DOL expanded what qualifies as a “quarantine” or “isolation” order for leave purposes under the Act and made it clear that the “[q]uarantine or isolation orders include a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay-at-home, quarantine, or otherwise restrict their own mobility.” The regulations also detail the employee’s right to substitute employer-provided paid leave for unpaid leave under the Act, and also address the employer’s right to require the substitution of employer-provided paid leave for unpaid leave under the Act. In addition, the regulations described the documentation required to demonstrate the need for leave under the Act. The DOL had previously edited its FAQs related to documentation of the need for leave, and it is still unclear if an employee is required to provide documentation from his or her health care provider to support the need for leave, or if the employee is merely required to certify the need for leave.
As the DOL (and IRS) field questions related to documentation of the need for leave, these issues may be addressed. Suffice it to say, issues related to the leave Act are evolving at a breakneck pace.
If you have questions, please contact Kean Miller labor and employment attorneys, Brian R. Carnie (318.562.2652), Chelsea G. Caswell (225.382.3405), A. Edward Hardin, Jr. (225.382.3458), Scott D. Huffstetler (225.389.3747), Erin L. Kilgore (225.389.3712), Michael D. Lowe (318.562.2653), Zoe W. Vermeulen (504.620.3367), and David M. Whitaker (504.620.3358).