Department of Labor Issues Additional Guidance on Families First Coronavirus Response Act

April 24, 2020

As an update to our post on March 27, the Department of Labor (“DOL”) continues to issue various guidance about its implementation of the Families First Coronavirus Response Act (the “FFCRA”).

To supplement its prior general, FLSA and FMLA question and answer guidance, on April 23, the DOL published additional general question and answer guidance. The new guidance largely addresses the DOL’s temporary regulations, published April 6 in the Federal Register and effective April 2 through December 31, 2020.  All of the DOL’s guidance relating to the FFCRA is available on its website on the COVID-19 and the American Workplace page.  On March 31, The Internal Revenue Service (“IRS”) also issued guidance on the process for receiving the tax credits, and noted that it expects to process requests for advances this month.

Although the temporary regulations and additional guidance are broadly consistent with prior guidance, we have included a few items of note below (including additional guidelines on how a small employer can assess whether it is in jeopardy of ceasing to be a going concern and thus deny a leave request from an employee seeking leave to care for a child as the result of school closures or other loss of childcare).  We also wanted to note that although it is unclear that it will effectuate any change in the DOL’s views, in their letter to the DOL, Patty Murray, Ranking Member, Senate Committee on Health, Education, Labor, and Pensions, and Rosa Delauro, Chair, House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies, took significant issue with the DOL’s interpretation of:  (i) certification and documentation, (2) that the employer have available work for an employee, and (3) governing the intermittent leave provisions, as well as certain definitions.

Please click here to read the full alert memorandum.