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FFCRA Update (Email, April 7, 2020)

Dear Library directors, 
 
In the days since the State Library sent out the memo on the Families First Coronavirus Response Act (FFCRA), the US Department of Labor (DOL) has released new guidance including rules implementing the statute, a webinar, and additional information on their COVID-19 Q & A document, links to all of which can be found
here
 
There are a couple areas in which the rules or recent guidance (or both) seem to vary from our initial interpretation of the statute:
 
1. Timing of Non-Enforcement Period. The memo states (on page 3 under Enforcement): “For 30 days after the Act takes effect there will be a temporary period of non-enforcement provided the employer acted reasonably and in good faith.” However, Field Assistance Bulletin 2020-1 states that the period of non-enforcement runs for 30 days following the enactment of the law making the period of non-enforcement last from March 18, 2020 through April 17, 2020. The bulletin further states that “After April 17, 2020, this limited stay of enforcement will be lifted, and the Department will fully enforce violations of the Act, as appropriate and consistent with the law.” 
 
2. FFCRA paid leave eligibility when the library is closed. After further review, it appears there may be limited instances where the library may be closed but an employee may still qualify for COVID-19 related paid leave. Because of this, when determining whether or not an employee is eligible for paid FFCRA leave, it may be more helpful for the library to look at why the employee is not working as opposed to whether or not the library is closed.  
 
Generally if the employee is not working because the library has no work for the employee to do, whether due to closure, partial closure, employee furlough, or some other reason, the employee is not likely eligible for paid FFCRA leave. (See the
DOL FFCRA Q&A numbers 23-27 and number 60.)  However, if the library does have work for the employee to do either on site or at the employee's home but the employee is unable to do the work because of a qualifying COVID-19 reason, then the employee may be eligible for paid FFCRA leave.
 
This means that if the library is closed but still does have work for the employee to do, if the employee cannot do the work either on site or at home remotely due to a qualifying COVID-19 related reason, the employee may qualify for FFCRA paid leave. 
  
Because of the various reasons why different staff members may find themselves working or not working, the various policies or agreements libraries may already have in place, and the various nuances in the FFCRA that determine whether each individual employee may or may not qualify for paid leave including  how much leave they may qualify for, the State Library recommends working directly with your own attorneys or the DOL directly when making determinations related to FFCRA paid leave eligibility.    
 
The DOL can be reached by email at
WHD-COVID19@dol.gov or by phone at (866) 487-9243. 
 
Best regards,
 
Cheri Harris 
Certification Program Director/Legal Consultant
Indiana State Library
chharris@library.IN.gov
317-234-6217 or toll free 800-451-6028