April 1, 2020 Update: The Department of Labor has now issued temporary rules and you can find them at this link.
The DOL recently posted a number of additional questions and answers regarding application of the paid leave laws in the FFCRA (including both the Emergency Paid Sick Leave Act and the Emergency FMLA Expansion Act), which are available for review here.
Any employer who believes it may be subject to the paid leave laws in the FFCRA should read all of the questions and answers posted by the DOL, but please note in particular that the recently added Q&A indicate that: 1) if an employer permits an employee to telework but that employee is “unable” to do so because of a qualifying reason (including caring for a child at home because of a COVID-19-related school closure), then that employee IS generally entitled to paid leave (Question 19); 2) If an employee is furloughed, that employee is NOT entitled to paid leave (Question 26); and 3) if an employer closes its work site either for lack of business or because it was required to close pursuant to a Federal, State, or local directive, affected employees are NOT entitled to paid leave (Question 27). The updated Q&A also includes guidance on the small business exemption for employers with less than 50 employees whose compliance with the paid leave requirements would jeopardize the viability of the business as a going concern (Questions 58 and 59), and a substantially more expansive definition of “health care provider” for purposes of who may be excepted from coverage (Question 56).
Please let us know if we can be of any assistance in interpreting this additional guidance from the Department of Labor as it applies to your business