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DOL Releases New Guidance for Compliance with CARES Act and FFCRA

April 3, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The U.S. Department of Labor (DOL) announced new guidance to help states with administration of the new unemployment provisions part of the Families First Coronavirus Response Act (FFCRA). It also updated and added additional guidance for the paid sick leave and expanded family and medical leave implementation under the FFCRA.

The new unemployment guidance provides help to states in implementing the temporary emergency state staffing flexibility provision of the CARES Act. It also provides help to states in determining eligibility requirements for applicants – especially in the area of gig workers and independent contractors, who are not typically eligible for unemployment benefits. The new guidance can be found here.

The guidance added by the DOL for the paid sick leave and expanded family and medical leave implementation includes a webinar to help employers determine eligibility and answer other questions related to benefits and protections under the FFCRA. The DOL also added additional materials to its Questions and Answers and added more workplace posters in additional languages. You may view these new materials here.

The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.

DOL Posts Temporary Rule Issuing Regulations on Families First Coronavirus Response Act

April 2, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

On April 1, 2020, the U.S. Department of Labor (DOL) posted a temporary rule issuing regulations on the Families First Coronavirus Response Act (FFCRA).  In particular, the new regulations deal with implementation of the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) portions of the FFCRA. The regulations are temporary and will expire December 31, 2020, and will not affect the Family Medical Leave Act beyond that date.

The new regulations shed light on several important areas of the FFCRA.
Our COVID-19 Alert addresses a few key takeaways on the following topics:

  • Self-quarantine
  • Effect on FMLA Leave and Paid Time Off Used Concurrently
  • Small Business Exemption
  • Intermittent Leave
  • Notice and Leave Documentation

The new regulations take effect immediately and contain many more details concerning the implementation of the FFCRA. Please see our previous Alert on the FFCRA for additional requirements under the new law, or reach out to our Morse Employment Law Team for help.

DOL Issues Revised Emergency Paid Sick Leave Guidance; Limits Scope Of Small Business Exemption

March 31, 2020 Leave a comment

MLM Headshot Photo 2019 (M1341570xB1386)By: Matthew L. Mitchell

As previously reported in an earlier Employment Law Alert, the emergency paid sick leave provisions of the Federal Families First Coronavirus Act (the “FFCA”) take effect April 1, 2020.

In anticipation of that effective date, the federal Department of Labor (the “DOL”) has published a revised and expanded “Questions and Answers” Guidance (the “Guidance”) concerning the FFCA.

This guidance addresses 59 distinct subject matters that relate to the complex application of the FFCA.  Of particular note:  The Guidance defines the scope of the FFCA exemption that applies to employers with fewer than 50 employees.

The text of FFCA implies a general exemption, from the paid sick leave requirements of the FFCA, for employers with fewer than 50 employees, that are experiencing economic hardships as a result of the coronavirus outbreak.  Through the Guidance, the DOL adopts a narrowed interpretation of this small business exemption:

“A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

  • employer employs fewer than 50 employees;
  • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • an authorized officer of the business has determined [certain financial exigencies exist.]”

Guidance, Q&A 59.

As such, unlike previous reports, small businesses are not broadly exempt from FFCA emergency paid leave requirements, and must provide employees with emergency paid leave benefits absent the limited exceptions described above. For example, under the Guidance, a small business is required to provide 80 hours of emergency paid sick leave to an employee that is absent from work as a result of a COVID-19 related illness.

In addition to the Guidance, in the coming days, the Internal Revenue Services is expected to publish instructions related to tax credits available to employers that incur expenses related to FFCA emergency leaves.

The rules and guidelines that relate to the FFCA, and to the other federal and state coronavirus relief programs, are moving targets.  The Morse Employment Law team is following these, and other matters related to COVID-19 responses, and will continue to report as appropriate.

Read our latest COVID-19 Alert.

DOL Releases New Fact Sheets and FAQs for Compliance with Families First Coronavirus Response Act

March 25, 2020 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda E. Thibodeau

The U.S. Department of Labor (DOL) released its first wave of new guidance as part of its initiative to help employers implement and comply with the new Families First Coronavirus Response Act (“the Act”).

The DOL posted a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers document on a number of compliance aspects of the Act, including how an employer counts the number of their employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate the wages employees are entitled to under this law.

The DOL expects to release further guidance on these topics later this week. Additional DOL guidance on COVID-19-related topics, including new workplace posters can be found here.

The Morse Employment Law team is following this, and other matters related to COVID-19 responses, and will continue to report as appropriate.

DOL Issues New Final Rule for Exempting Executive, Administrative, and Professional Employees under the FLSA

September 24, 2019 Leave a comment

By: Amanda Thibodeau

AET Headshot Photo 2019 (M1344539xB1386)The Department of Labor (DOL) released a final rule today, updating its regulations under the Fair Labor Standards Act (FLSA).  The final rule raises the threshold salary and annual compensation levels for exempting executive, administrative, and professional employees, including raising the “standard salary level” for exempting executive, administrative, and professional employees from the currently enforced level of $455 per week (the equivalent of $23,660 per year for a full-year worker) to $684 per week (the equivalent of $35,568 per year for a full-year worker).  It further allows employers the ability to apply a portion of bonuses or commissions received by those employees towards that salary level, for purposes of meeting the exemption. The final rule will be effective January 1, 2020.  For more information, or to review the final rule itself, visit the DOL’s announcement here.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

IEP Meetings Covered Under FMLA

August 15, 2019 Leave a comment

By: Amanda Thibodeau

DOL Issues New Opinion Letter On the Intersection of IEP Meetings and the FMLA

AET Headshot Photo 2019 (M1344539xB1386)

Most employers and their human resources specialists are acquainted with the protections afforded to employees under the Family and Medical Leave Act (FMLA).  Quite often employers interact with the FMLA when an employee needs time off of work to recover from an extended illness or other medical issue, or to care for an employee’s family member.  A trap for the unwary, however, presents itself in a new Opinion Letter issued by the Department of Labor on August 8, 2019.

The Opinion Letter (FMLA2019-2-A) responds to an anonymous request from the parents of a school-aged child inquiring whether the FMLA protects the parents’ ability to take time off of work to attend their children’s Individualized Education Program (IEP) meetings.  The DOL unequivocally reached the conclusion that parents’ attendance at such IEP meetings were covered by the protections of the FMLA.

In the facts presented to the DOL, the children had qualifying health conditions under the FMLA that were certified by the children’s doctors.  The children’s doctors had also provided documentation to the wife’s employer that the children required intermittent care that would require her to miss work on occasion.  The wife’s employer had previously granted the wife’s requests for leave under the FMLA to bring the children to medical appointments in accordance with these certifications; however, the employer refused to grant FMLA leave for the wife to attend the children’s IEP meetings with the school, which are held four times per year.

The DOL focused on several aspects of the FMLA including that the FMLA permitted leave “to care for” a family member with a serious health condition, including “to make arrangements for changes in care.” See 29 C.F.R. § 825.124(b).  In narrowing in on these clauses, the DOL also relied upon its previous opinion letter (FMLA94, 1998 WL 1147751 (Feb. 27, 1998)), which found an employee was entitled to take FMLA leave to attend “care conferences” related to her mother’s health conditions.  Similarly, the DOL found that wife’s attendance at the children’s IEP meetings was “clearly essential” to the children’s care and noted that the children’s doctors need not be present at these meetings to qualify for intermittent leave under the FMLA.

Employers or human resources specialists presented with similar situations should be mindful of this guidance when analyzing whether such leave requests qualify under the FMLA.  Proper training of managers is recommended, including on what types of school meetings are covered and which may not be, and what types of documentation the managers can request from the employee to support the leave request.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

Federal Judge Temporarily Blocks New Overtime Rule From Taking Effect On December 1

November 23, 2016 Leave a comment

2015-01-05_8-57-41By: Scott J. Connolly and Sandra E. Kahn

On November 22, a federal judge in Texas issued a preliminary order that temporarily blocks the U.S. Department of Labor (DOL) from implementing changes to the salary basis for white collar overtime exemptions.  The new salary rule, which was to become effective on December 1, 2016 would have required employers to increase exempt employees’ minimum salary from $23,660 to $47,476.  The preliminary court order blocking the rule appears to apply to all public and private employers nationwide.SJC Headshot Photo 2015 (M0846523xB1386)

Find out how the judge’s order will affect the new salary rule, which was to become effective on December 1. Read this month’s Employment Law Alert.