The DOL Provides Guidance to Employers Regarding the Families First Coronavirus Response Act

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On March 24, 2020 the Department of Labor (DOL) provided its first guidance to employers regarding immediate legislative changes spurred by the COVID-19 pandemic – namely the Families First Coronavirus Response Act (FFCRA).  FFCRA requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-1.  Below is a summary of the FFCRA as of March 24, 2020, though there are still several questions areas yet to be addressed by the DOL:

What must covered employers provide under FFCRA?

  • 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.

What employers are covered?

  • FFCRA applies to private employers with less than 500 employees (measured at the time the leave is requested) and almost all public sector employers at the state and local level.
  • Employers with less than 50 employees (measured at the time the leave is requested) may qualify for an exemption from the requirement to provide leave if doing so would jeopardize their business.  The only guidance the DOL provides so far on how to take advantage of this exemption is an instruction to document why the business cannot provide the leave, but to NOT provide any materials to the DOL. The DOL is expected to provide further clarifications in April 2020 regarding this exemption.

What employees are eligible and when can they receive FFCRA benefits?

  • The FFCRA takes effect on April 1, 2020 and expires on December 31, 2020. Eligible employees of covered employers can take leave under the FFCRA at any point during that time period.
  • If an employee is quarantined or experiencing COVID-19 symptoms and seeking a medical diagnosis, the covered employer must provide that employee with two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay.  This is capped at $511 per day and $5,110 in the aggregate over the two-week period.
  • If an employee needs to take care of a quarantined individual or a child whose school or childcare provider is closed or unavailable due to COVID-19, the covered employer must provide that employee with two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay.  This is capped at $200 per day and $2,000 in the aggregate over a two-week period.
  • If an employee has been employed for at least 30 days and needs to care for a child whose school or child care provider is closed or unavailable due to COVID-19, the covered employer must provide that employee with 10 weeks of paid leave at two-thirds the employee’s regular rate of pay.  This is also capped at $200 per day and $10,000 in the aggregate over a 10-week period. The first two weeks of this leave can be unpaid or the employee can use the paid sick leave days which may be available to cover those first two weeks.

Other considerations

  • Every dollar of required paid leave, plus the cost of the private-sector employer’s health insurance premiums during the leave, will be fully covered by a refundable tax credit for private-sector employers.
  • An employee is eligible for a total of 80 hours of paid sick leave under the new law, regardless of the covered reason for such leave. Therefore, if any employee takes 80 hours of paid sick leave to self-quarantine and later requests more paid sick leave for a different qualifying reason (e., they have a sick family member) the employee is not entitled to another 80 hours of paid leave. However, if an employer gave an employee leave for a qualifying reason prior to April 1, and that same employee requests paid sick leave for a qualifying reason after April 1, the employee is entitled to up to 80 hours of paid leave.
  • The DOL has stated that it will not bring enforcement actions for violations of the FFCRA until after April 17 provided the employer has made good faith efforts to comply.

DOL Posters/Notices

On March 25, 2020, the DOL published the FFCRA notices which must be posted in a conspicuous place on the employer’s premises.  Since many employer premises are currently closed, the DOL recommends posting the notice on an employer’s intranet, emailing it to employees, or mailing it to employees.  *Note, The FFCRA poster incorrectly states the maximum aggregated cost of the 10 weeks of paid leave per employee is $12,000, but the statute caps this amount at $10,000.

The DOL has also issued a Field Assistance Bulletin, for reference.

Questions / Updates

Employers whose operations have been materially altered by CDC recommendations and other state or federal orders will most likely be eligible for the exemption noted above, but proper documentation will be required.  Employers are encouraged to contact one of our attorneys to discuss how the FFCRA will affect them and how to properly document for the exemption, if applicable.  Future DOL updates are expected and Commonwealth Counsel Group, PLLC will continue to update employers as new guidance is released.