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Important Return-to-Work Guidance Under the Families First Coronavirus Response Act: What Employees and Employers Need to Know

Last week, we reported on the U.S. Department of Labor’s (DOL) changes to streamline optional-use forms for workers to use when requesting FMLA leave. Most recently, on July 20^thof this week, the DOL has published additional guidance for workers and employers regarding the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) and their affect in the workplace during the coronavirus.

The Wage and Hour Division (WHD) published updated guidance and materials for both employees and employers as well as answers to commonly asked questions about paid sick and expanded family and medical leave under the FFCRA. The FCRA provides emergency paid sick leave, and paid family leave under the FMLA for certain workers affected by COVID-19. Employers of fewer than 500 employees are required to grant up to 80 hours of paid six leave to workers exposed to COVID-19, required to quarantine, or unable to work or telework because of the closure of their child’s school or place of care.

The recently issued guidance states that if an employee was eligible for extended FMLA leave, and used four weeks of leave before being furloughed, they are still entitled upon their return to work to the remaining eight weeks of leave. That means that the period of time the employee was on furlough does not count against their FFCRA/FMLA leave entitlement.

The guidance provides that while employees returning to work after paid FFCRA leave are entitled to be restored to their same or equivalent position, an employer can bring the employee back to work in a position requiring less interaction with co-workers, or require them to telework.

Another highlight from the updated guidance is the fact that employers shall not discriminate or retaliate against employees for their use of FFCRA leave. Employers may not use the anticipated need for FFCRA leave upon reopening as a negative factor in an employment decision.

You can access the following materials using the links below:

Fact sheet for employees
Fact sheet for employers
Questions and answers about paid sick and expanded family and medical leave
Guidance poster for federal workers
Guidance poster for all other employees
Questions and answers about for employers regarding FFCRA notice, and
Graphic outlining quick benefits tips to determine how much paid leave the FFCRA allows workers to take.

As more employees are returning to the workforce, it is critical that both workers and employers understand common issues they will be faced with when responding to COVID-19, its effects on wages and hours worked under the FLSA, as well as job-protected leave under the FMLA.

With more guidance on the way, it is important for employers to seek counsel given the complexity of these federal regulations and their impact on state and local laws. Please call Vandenack Weaver to speak with an attorney at 402-504-1300 or [email protected] for guidance.