Paid Leave Under the Families First Coronavirus Response Act; Correction (rule, 85 FR 20156, April 10, 2020)
Summary
A correction from the Department of Labor's Wage and Hour Division to its temporary rule of April 6, 2020 implementing public health emergency leave under the Families First Coronavirus Response Act (FFCRA). It was published in the Federal Register on April 10, 2020 (Vol. 85, No. 70). The Department corrects certain preamble and regulatory text of that rule (29 CFR Part 826, RIN 1235–AA35). The same Federal Register page carries a National Labor Relations Board document delaying the effective date of its April 1, 2020 final rule on representation elections and proof of majority support in construction-industry collective-bargaining relationships from June 1, 2020 to July 31, 2020.
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Cite this document
“Paid Leave Under the Families First Coronavirus Response Act; Correction (rule, 85 FR 20156, April 10, 2020).”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/paid-leave-under-the-families-first-coronavirus-response-act-correctio-2f175def45/
, SHA-256 915a6489ffc4d13f3a5f77b322d9582b57b9560ec296d7d548796fc65966d5e0.Full text
20156 Federal Register / Vol. 85, No. 70 / Friday, April 10, 2020 / Rules and Regulations
NATIONAL LABOR RELATIONS U.S.C.) authorizes agencies to dispense Dated: April 6, 2020.
BOARD with notice and comment procedures Roxanne L. Rothschild,
for rules when the agency, for ‘‘good Executive Secretary.
29 CFR Part 103 cause,’’ finds that those procedures are [FR Doc. 2020–07537 Filed 4–8–20; 8:45 am]
RIN 3142–AA16 ‘‘impracticable, unnecessary, or contrary BILLING CODE 7545–01–P
to the public interest.’’ Under this
Representation—Case Procedures: section, an agency, upon finding good
Election Bars; Proof of Majority cause, may issue a final rule without DEPARTMENT OF LABOR
Support in Construction-Industry seeking comment prior to the
Collective-Bargaining Relationships rulemaking. Wage and Hour Division
For the following reasons, the Board
AGENCY: National Labor Relations finds that notice and comment would be 29 CFR Part 826
Board. impracticable, unnecessary, and
ACTION: Final rule; delay of effective RIN 1235–AA35
contrary to the public interest for this
date. document delaying the effective date of Paid Leave Under the Families First
SUMMARY: On April 1, 2020, the National
its final rule. First, given the ongoing Coronavirus Response Act; Correction
Labor Relations Board (Board) pandemic and national emergency, the
Board believes that regulated entities AGENCY: Wage and Hour Division,
published a final rule making three Department of Labor.
amendments to its rules and regulations should be focused on mitigating the
pandemic’s serious ramifications and on ACTION: Temporary rule; correction and
governing the filing and processing of
petitions for a Board-conducted understanding their significant correcting amendment.
representation election and proof of responsibilities and obligations under
the pandemic relief laws enacted by SUMMARY: The Department of Labor
majority support in construction- published in the Federal Register on
industry collective-bargaining Congress in the last month.1 They
should not be required to expend April 6, 2020, a temporary rule to
relationships. The purpose of this implement public health emergency
document is to postpone human capital resources reviewing the
rule to ensure they understand the leave under Title I of the Family and
implementation of the rule during the Medical Leave Act (FMLA), and
National Emergency Concerning the substantive changes, as the rule
contemplates, or to adjust to the rule’s emergency paid sick leave to assist
Novel Coronavirus Disease (COVID–19) working families facing public health
Outbreak. The Board therefore delays new obligations. 85 FR at 18397. Given
the immediate need to provide the emergencies arising out of Coronavirus
the effective date from June 1, 2020 to Disease 2019 (COVID–19) global
July 31, 2020. Board’s regulated entities with certainty
regarding the delayed timing of their pandemic. The leave is created by a
DATES: The effective date of the final time-limited statutory authority
rule published on April 1, 2020, at 85 responsibilities and obligations under
the new rule, submitting this short delay established under the Families First
FR 18366, is delayed from June 1, 2020 Coronavirus Response Act (FFCRA), and
to July 31, 2020. in the rule’s effective date to notice and
comment would be impractical and is set to expire on December 31, 2020.
FOR FURTHER INFORMATION CONTACT: The FFCRA and the temporary rule do
Roxanne L. Rothschild, Executive contrary to the public interest, per 5
U.S.C. 553(b)(3)(B). not affect the FMLA after December 31,
Secretary, National Labor Relations 2020. Through publication of this
Second, the Board concludes that
Board, 1015 Half Street SE, Washington, document, the Department corrects
proceeding directly to final rule is
DC 20570–0001, (202) 273–1940 (this is certain preamble and regulatory text.
appropriate because notice and
not a toll-free number), 1–866–315–6572 DATES: This rule is effective from April
comment is unnecessary under the
(TTY/TDD). 10, 2020, through December 31, 2020.
circumstances. The Board believes that
SUPPLEMENTARY INFORMATION: On April This rule became operational on April 1,
this change is in the nature of a minor,
1, 2020, the National Labor Relations technical correction. The Board issued 2020.
Board published a final rule making its rule on April 1, 2020, only 5 days FOR FURTHER INFORMATION CONTACT:
three amendments to its rules and
ago; therefore, the change in effective Amy DeBisschop, Director, Division of
regulations governing the filing and
date is almost contemporaneous with Regulations, Legislation, and
processing of petitions for a Board-
the rule itself. It is therefore unlikely Interpretation, Wage and Hour Division,
conducted representation election and
any parties will have relied on the rule U.S. Department of Labor, Room S–
proof of majority support in
to their detriment, and the minor 3502, 200 Constitution Avenue NW,
construction-industry collective-
amendment to the effective date of the Washington, DC 20210, telephone: (202)
bargaining relationships. The Board
rule merely extends the status quo for 693–0406 (this is not a toll-free
made the rule effective on June 1, 2020.
The Board has determined that a an additional 60 days. Moreover, the number).
delayed effective date is required to Board’s initial choice of effective date, SUPPLEMENTARY INFORMATION: The
allow the Board’s employees and June 1, 2020, was discretionary; the Department of Labor published a
stakeholders to focus on continuity of Board did not propose an effective date temporary rule in the Federal Register
their operations during the national in the NPRM, nor did it receive any on April 6, 2020 titled, Paid Leave
emergency concerning the Coronavirus comments suggesting one. Given this under the Families First Coronavirus
pandemic during the next several swift correction, the Board concludes Response Act. 85 FR 19326. The
months, rather than on implementing that notice and comment is unnecessary temporary rule contained an incorrect
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and understanding the Board’s new to extend the effective date an calculation of hours worked in a
rule. Therefore, the Board hereby delays additional 60 days, or to July 31, 2020. particular scenario (page 19329), a
the effective date of the rule to July 31, 1 See Coronavirus Aid, Relief, and Economic
paragraph within the preamble
2020. Security Act, Public Law 116–136 (Mar. 27, 2020);
describing regulatory text that was
Section 553(b)(3)(B) of the Families First Coronavirus Response Act, Public erroneously included (page 19338),
Administrative Procedure Act (APA) (5 Law 116–127 (Mar. 18, 2020). along with incorrect cross references in
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Federal Register / Vol. 85, No. 70 / Friday, April 10, 2020 / Rules and Regulations 20157
§§ 826.20 (page 19349, in the third § 826.20 Paid leave entitlements. and $5,110 in the aggregate per
column), 826.22 (page 19350, second (a) * * * Employee when an Employee takes Paid
column), and 826.100(d) (page 19355, (7) Caring for an individual. An Sick Leave for qualifying reasons set
first column) of the regulatory text. Employee may take Paid Sick Leave for forth in § 826.20(a)(1)(i) through (iii).
Additionally, the Department is the reason described in paragraph (2) In no event shall an Employer be
inserting omitted titles in § 826.30(d) (a)(1)(iv) of this section if the Employee required to pay more than $200 per day
and (e) (page 19352, first column); is unable to perform work for his or her and $2,000 in the aggregate per
inserting a comma in § 826.30(b)(3) to Employer and if the individual depends Employee when an Employee takes Paid
make a citation more accurate (page on the Employee to care for him or her Sick Leave for qualifying reasons set
19351, second column); correcting the and is either: forth in § 826.20(a)(1)(iv) through (vi).
reference to 5102(a)(2) in (i) Subject to a Quarantine or Isolation ■ 5. In § 826.30, revise paragraphs (b)(3)
§ 826.30(c)(1)(iii) (page 19351, third Order as described in paragraph (a)(1)(i) and (c)(1)(iii) and the heading for
column); and making two corrections to of this section; or paragraph (d) and add a heading for
the text of § 826.50(d) (page 19353, (ii) Has been advised to self- paragraph (e) to read as follows:
second column). The Department is quarantine by a health care provider as
capitalizing a defined term for § 826.30 Employee eligibility for leave.
described in paragraph (a)(1)(ii) of this
consistency with the remainder of the section, because of a belief that— * * * * *
definition section (page 19348, third (A) The individual has COVID–19; (b) * * *
column). Finally, the Department is (B) The individual may have COVID– (3) An Employee who has been
correcting a date in § 826.70(e) and 19 due to known exposure or symptoms; employed by a covered Employer for at
deleting § 826.70(f) (page 19354, first or least thirty calendar days is eligible for
and second columns) to be consistent (C) The individual is particularly Expanded Family and Medical Leave
with the remainder of the regulations. vulnerable to COVID–19. under the EFMLEA regardless of
This action makes the necessary * * * * * whether the Employee would otherwise
corrections in the regulatory text and (b) Qualifying reason for Expanded be eligible for leave under the FMLA.
preamble. Family and Medical Leave. An Eligible Thus, for example, an Employee need
Employee may take Expanded Family not have been employed for 1,250 hours
Corrections to Preamble of service and twelve months of
and Medical Leave because he or she is
In rule FR Doc. 2020–07237, unable to work due to a need to care for employment as otherwise required
published on April 6, 2020 (85 FR his or her Son or Daughter whose under the FMLA, see § 825.110(a)(1) and
19326), make the following corrections: School or Place of Care has been closed, (2) of this chapter, to be eligible for
1. On page 19329, in the first column, or whose Child Care Provider is leave under the EFMLEA.
correct by revising ‘‘7.5 hours’’ to ‘‘6.5 unavailable, for reasons related to (c) * * *
hours.’’ COVID–19. An Eligible Employee has (1) * * *
need to take Expanded Family and (iii) The definition of ‘‘health care
2. On page 19338, in the second
Medical Leave for the purposes of this provider’’ contained in this section
column, under ‘‘III. Discussion’’ part G
paragraph (b) only if no suitable person applies only for the purpose of
is corrected by deleting the final
is available to care for his or her Son or determining whether an Employer may
paragraph under the heading ‘‘G. Leave
Daughter during the period of such elect to exclude an Employee from
to Care for a Child Due to School or
leave. taking leave under the EPSLA and/or
Place of Care Closure or Child Care
the EFMLEA, and does not otherwise
Unavailability—Intersection between * * * * * apply for purposes of the FMLA or
the EFMLEA and the FMLA’’. ■ 4. Revise § 826.22 to read as follows:
section 5102(a)(2) of the EPSLA.
List of Subjects in 29 CFR Part 826 § 826.22 Amount of pay for Paid Sick * * * * *
Leave. (d) Exclusion by OMB from EFMLEA.
Wages.
(a) Subject to paragraph (c) of this * * *
For the reasons set out in the section, for each hour of Paid Sick Leave (e) Exclusion by OMB from EPSLA.
preamble, the Department of Labor taken by an Employee for qualifying * * *
corrects 29 CFR part 826 by making the reasons set forth in § 826.20(a)(1)(i)
following correcting amendments: * * * * *
through (iii), the Employer shall pay the ■ 6. Revise § 826.50(d) to read as
PART 826—PAID LEAVE UNDER THE higher of: follows:
FAMILIES FIRST CORONAVIRUS (1) The Employee’s average regular
rate as computed under § 826.25; § 826.50 Intermittent leave.
RESPONSE ACT
(2) The Federal minimum wage to * * * * *
■ 1. The authority citation for part 826
which the Employee is entitled; or (d) Calculation of leave. If an
continues to read as follows: (3) Any State or local minimum wage Employee takes Paid Sick Leave or
to which the Employee is entitled. Expanded Family and Medical Leave
Authority: Pub. L. 116–127 sections (b) Subject to paragraph (c) of this intermittently as the Employee and
3102(b) and 5111(3); Pub. L. 116–136 section
section, for each hour of Paid Sick Leave Employer have agreed, only the amount
3611(7).
taken by an Employee for qualifying of leave actually taken may be counted
§ 826.10 [Amended] reasons set forth in § 826.20(a)(1)(iv) toward the Employee’s leave
through (vi), the Employer shall pay the entitlements. For example, an Employee
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■ 2. In § 826.10(a), remove ‘‘Subject to a
Employee two-thirds of the amount who normally works forty hours in a
quarantine or isolation order’’ and add described in § 826.24(a). workweek and only takes three hours of
in its place ‘‘Subject to a Quarantine or (c) The limitations on payments are as leave each work day (for a weekly total
Isolation Order’’. follows: of fifteen hours) has only taken fifteen
■ 3. In § 826.20, revise paragraphs (a)(7) (1) In no event shall an Employer be hours of the Employee’s Paid Sick Leave
and (b) to read as follows: required to pay more than $511 per day or 37.5% of a workweek of the
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20158 Federal Register / Vol. 85, No. 70 / Friday, April 10, 2020 / Rules and Regulations
Employee’s Expanded Family and SUMMARY: The Department of the things, section 104 of NKSPEA provides
Medical Leave entitlement. Treasury’s Office of Foreign Assets that the President, with certain
■ 7. In § 826.70, revise the section Control (OFAC) is amending the North exceptions, shall block and prohibit all
heading and paragraph (e) and remove Korea Sanctions Regulations to transactions in property and interests in
paragraph (f) to read as follows: implement the Treasury-administered property that are in the United States,
provisions of the North Korea Sanctions that come within the United States, or
§ 826.70 Leave to care for a child due to
and Policy Enhancement Act of 2016, as that are or come within control or
School or Place of Care closure or child
care unavailability—intersection of EFMLEA amended by the Countering America’s possession of a U.S. person of: The
and the FMLA. Adversaries Through Sanctions Act and Government of North Korea, the
the National Defense Authorization Act Workers’ Party of Korea, and other
* * * * *
(e) An Eligible Employee can take a for Fiscal Year 2020. Specifically, OFAC persons the President determines
maximum of twelve workweeks of is incorporating blocking and knowingly engage in certain North
Expanded Family and Medical Leave correspondent account sanctions Korea-related activities.
provisions, adding a new prohibition On August 2, 2017, the President
during the period in which the leave
that is applicable for persons that are signed CAATSA into law. Title III of
may be taken (April 1, 2020 to
owned or controlled by a U.S. financial CAATSA, among other things, amends
December 31, 2020) even if that period
institution and established or NKSPEA. Section 311(a) of CAATSA
spans two FMLA leave twelve-month
maintained outside the United States, amends section 104(a) of NKSPEA to
periods. For example, if an Employer’s
adding new statutory exemptions provide that the President shall, with
twelve-month period begins on July 1, certain exceptions, block and prohibit
and an Eligible Employee took seven relevant to certain newly added
prohibitions, making technical and all transactions in property and interests
weeks of Expanded Family and Medical in property that are in the United States,
Leave in May and June, 2020, the conforming edits to three definitions,
revising an interpretive provision, and that come into the United States, or that
Eligible Employee could only take up to are or come into the possession of U.S.
five additional weeks of Expanded updating the authorities and delegation
sections of the regulations. OFAC is also persons of any person the President
Family and Medical Leave between July determines knowingly, directly or
1 and December 31, 2020, even though amending the definition of luxury
goods. indirectly, imports, exports, or reexports
the first seven weeks of Expanded to or from North Korea any defense
Family and Medical Leave fell in the DATES: This rule is effective April 10, article or defense service or engages in
prior twelve-month period. 2020. certain other North Korea-related
■ 8. Revise § 826.100(d) to read as
FOR FURTHER INFORMATION CONTACT: activities. Section 104(b) of NKSPEA
follows: OFAC: Assistant Director for Licensing, provides that the President may, with
§ 826.100 Documentation of need for tel.: 202–622–2480; Assistant Director certain exceptions, block any person
leave. for Regulatory Affairs, tel.: 202–622– that knowingly engages in, contributes
* * * * * 4855; or Assistant Director for Sanctions to, assists, sponsors, or provides
(d) To take Paid Sick Leave for a Compliance & Evaluation, tel.: 202–622– financial, material, or technological
qualifying COVID–19 related reason 2490. support for, or goods and services in
under § 826.20(a)(1)(iv) an Employee SUPPLEMENTARY INFORMATION: support of, any sanctioned person.
must additionally provide the Employer On December 20, 2019, the President
Electronic Availability signed the FY 2020 NDAA. Title LXXI
with either:
(1) The name of the government entity This document and additional of the 2020 NDAA, titled the ‘‘Otto
that issued the Quarantine or Isolation information concerning OFAC are Warmbier North Korea Sanctions and
Order to which the individual being available on OFAC’s website Enforcement Act of 2019,’’ among other
care for is subject; or (www.treasury.gov/ofac). things, amends NKSPEA by adding new
(2) The name of the health care sections 104(g), 201B, and 201C.
Background NKSPEA section 104(g) requires the
provider who advised the individual
being cared for to self-quarantine due to On November 4, 2010, OFAC issued President to designate any person that
concerns related to COVID–19. the North Korea Sanctions Regulations, he determines knowingly engages in
31 CFR part 510 (75 FR 67912, certain specified North Korea-related
* * * * *
November 4, 2010) (the ‘‘Regulations’’). activities.
Signed at Washington, DC, this 8th day of Since then, OFAC has amended the New section 201B of NKSPEA
April, 2020. Regulations several times. This rule requires the Secretary of the Treasury to
Cheryl M. Stanton, amends the Regulations to incorporate impose sanctions with respect to any
Administrator, Wage and Hour Division. the Treasury-administered provisions of foreign financial institution (FFI) that
[FR Doc. 2020–07711 Filed 4–8–20; 4:15 pm] the North Korea Sanctions and Policy the Secretary of the Treasury
BILLING CODE 4510–27–P Enhancement Act of 2016, Public Law determines, in consultation with the
114–122, 130 Stat. 93 (22 U.S.C. 9201– Secretary of State, knowingly on or after
9255) (NKSPEA), as amended by the April 18, 2020, provides significant
DEPARTMENT OF THE TREASURY Countering America’s Adversaries financial services to any person
Through Sanctions Act, Public Law designated for the imposition of
Office of Foreign Assets Control 115–44, 131 Stat. 886 (22 U.S.C. 9201 et sanctions with respect to North Korea
seq.) (CAATSA) and the National under NKSPEA subsections 104(a),
31 CFR Part 510 Defense Authorization Act for Fiscal 104(b), or 104(g), an applicable
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Year 2020, Public Law 116–92, 133 Stat. Executive order, or an applicable United
North Korea Sanctions Regulations 1198 (FY 2020 NDAA). Nations Security Council resolution.
AGENCY: Office of Foreign Assets Section 201B provides that the Secretary
NKSPEA may impose blocking sanctions on such
Control, Treasury.
On February 18, 2016, the President FFIs, or may prohibit or impose strict
ACTION: Final rule.
signed NKSPEA into law. Among other conditions on the opening or
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