E-Alerts

Update: USDOL Announces Guidance For Employers On FFCRA

Late Tuesday, March 24, 2020, the U.S. Department of Labor (“DOL”) issued preliminary guidance for employers on the paid sick and family leave provisions of the new Families First Coronavirus Response Act (FFCRA). The DOL also plans to release official regulations interpreting the Act, but in the meantime this new guidance provides initial compliance assistance in helpful fact-sheet formats, setting forth the Act’s main provisions and answering some of employers’ most frequently asked questions.

A Reminder:

By way of reminder, the DOL’s guidance reiterates that covered employers must provide to all employees:

• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

• Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

In addition, covered employers must provide employees who have been employed for at least 30 days with the following:

• Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

What’s New?

Some of the most important takeaways from DOL’s new guidance include the following.

• The Effective Date Is April 1, Not April 2. Most employers and stakeholders had calculated an April 2 effective date, based on fifteen days from the Act’s March 18, 2020 enactment date. The DOL is interpreting the effective date to be Wednesday, April 1 – less than one week from today.

• The DOL Has Released A Sample FFCRA Rights Poster. Consistent with the Act’s directive, the DOL has published a sample poster to assist employers in complying with their obligation to provide employees with notice of their rights to paid sick and family leave. All covered employers must post notice of the FFCRA’s provisions in a conspicuous place on its premises. This requirement may be satisfied by emailing or direct mailing a copy of the notice to employees, or posting a copy on the employer’s intranet or website.

• Employers Should Use A Snapshot Method When Counting Employees Towards The 500 Employee Threshold. The FFCRA applies only to employers with 500 employees or fewer, but the Act provided no guidance on how to count employees towards that 500-employee threshold. The DOL’s guidance states that if an employer maintains fewer than 500 employees (full or part-time) within the United States as of the date an employee’s leave under the Act is to be taken, the employer is considered to be a covered employer.

• In Determining Whether To Count Employees Of Another Employer, Use Existing DOL Guidance. The DOL’s new guidance reminds us that, in determining whether the employer maintains 500 employees, employers may count employees towards the 500-employee total even if they are jointly employed by another entity. Employers should use the DOL’s existing guidance under the FLSA to determine joint employer status. The DOL’s guidance also points employers to its existing tests for determining single or “integrated” employer status for purposes of determining whether employees of multiple entities should be counted together.

• How To Pay Employees On Leave Who Would Have Worked Overtime. The DOL has clarified that leave must be paid for the hours the employee normally would have been scheduled to work, even if that amounts to more than 40 hours for a particular workweek.

The DOL’s guidance reminds employers, however, of several important caveats to this requirement. First, employees who would have worked overtime are not entitled to have part of their leave paid at a time-and-a-half. Second, for purposes of the paid sick leave provisions, employees are capped at 80 hours of total paid leave over a two-week period, even if they would have expected to work more than 80 hours during that period. Third, the Act has maximum payout caps. For leave taken under the paid sick leave provisions, those caps are (a) $511 per day, or $5,110 total, if taken for self-care purposes related to COVID-19, and (b) $200 per day, or $2,000 total, if taken for care of others, for childcare purposes, or for self-care for a “substantially similar condition” provision. For leave taken under the expanded family and medical leave requirements, the cap is $200 per day, or $10,000 total.

• Details On A Hardship Exemption For Businesses With Less Than 50 Employees Are Forthcoming. The DOL has clarified that it will issue regulations allowing businesses with fewer than 50 employees to seek an exemption from the child care-related paid sick leave and expanded family and medical leave requirements. Employers seeking to take advantage of this exemption will be required to document how granting the leave would jeopardize the viability of the business as a going concern.

• Period Of Non-Enforcement Through At Least April 17. The DOL has instructed field staff not to bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the FFCRA’s enactment (i.e., March 18 through April 17, 2020), if the employer has made reasonable, good faith efforts to comply with the Act. The DOL has specified that “reasonable, good faith efforts” will be present if (a) the employer remedies any violations, including by making all affected employees whole as soon as practicable; (b) the violations of the Act were not “willful”; and (c) the employer commits in writing to comply with the Act in the future.

• The DOL Will Host Online Forum For Employer Stakeholders. On March 25, the DOL announced that it will be hosting a national online dialogue with employers, entitled “Providing Expanded Family and Medical Leave to Employees Affected by COVID-19,’ through Sunday, March 29, for employers to discuss compliance issues and the impact of the FFCRA. Employers who wish to provide feedback and submit questions can register here.

SHPC is continuing to closely track developments on the FFCRA. If you have questions on the FFCRA or any of these future developments, please contact one of SHPC’s experienced employment attorneys.