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DOL Says 61 Million Workers Can Get Virus-Related Paid Leave (1)

April 1, 2020, 6:52 PMUpdated: April 1, 2020, 8:31 PM

The Labor Department issued a new regulation to implement coronavirus-related paid sick and family leave benefits available for up to 61 million workers.

The DOL Wage and Hour Division issued the direct final rule Wednesday, effective immediately. The regulation provides the most comprehensive guidelines to date on who qualifies for virus-related leave and when they can use it since President Donald Trump signed the Families First Coronavirus Response Act (Public Law 116-127) March 18.

The new rule requires employers with fewer than 500 workers to provide two weeks of paid sick leave to employees unable to work due to the virus. Those companies also must offer up to 10 weeks of partially paid leave under expanded Family and Medical Leave Act coverage to care for a child whose school or daycare is closed from the pandemic. The leave expires on Dec. 31.

“We want workers who have coronavirus to be away from the workplace,” said Labor Secretary Eugene Scalia on a call with reporters. “This paid leave also helps workers to take leave to care for sick family members” while keeping businesses attached to their workforces “so we’ll be able to spring back more quickly once we’ve contained the virus.”

Businesses and workers nationwide have been awaiting the regulation’s release to better understand the sweeping new paid leave requirements. Lawyers are looking to the DOL for clarity so they can advise companies, many of whom are considering workforce reductions, affected by the pandemic. Worker advocates are launching communications campaigns to ensure low-wage workers who qualify are aware of their new entitlements.

The department won’t enforce the rule for “good-faith” employers until April 18. The agency bypassed the process of issuing a proposed rule and soliciting public comment, stating that it had “good cause” under the Administrative Procedure Act to issue a direct final rule due to the urgency of avoiding economic harm caused by Covid-19.

Who’s In? Who’s Out?

The DOL previously provided guidance on how businesses with fewer than 50 employees can qualify for an exemption to the requirements for childcare leave, and specified which types of healthcare providers and emergency responders will be excluded from the rules entirely.

That same guidance document also stipulates that when businesses temporarily shutter operations or furlough employees they will not be required to provide paid sick leave and family leave.

Workers are eligible for the paid sick leave at their full regular rate of pay if they’re unable to work due to one of five reasons, including that they’re subject to a federal, state, or local quarantine or isolation order related to Covid-19. The rule provides more specifics on this, which has been a subject of confusion recently because of the patchwork of orders across the country.

Quarantine or isolation orders triggering coverage include a “broad range of governmental orders” such as those that advise some or all citizens to shelter in place, stay home, quarantine, or “otherwise restrict their own mobility,” the department said in the rule.

Other qualifying reasons include that the worker has been advised by a health-care provider to self-quarantine due to Covid-19; is experiencing Covid-19 symptoms and seeking a diagnosis; is caring for someone who’s been ordered to stay home by government or a health-care provider; or is caring for a son or daughter—including a biological, adopted, or foster child, stepchild, a legal ward, or child of a person deemed the legal guardian—whose school or place of care is closed. This applies to children under 18 or people with disabilities who are older than 18 and incapable of self-care.

Expanded FMLA benefits paid at two-thirds of the employee’s regular rate are available only for workers who need to care for a child instead of working because Covid-19 has caused their school or care provider to close or made the care provider unavailable.

(Updated with comments from labor secretary in 4th paragraph and additional reporting throughout. )

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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