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U.S. Department of Labor Issues Guidance on the Families First Coronavirus Response Act Before Legislation Goes into Effect on April 1, 2020

3/25/20

By: Robert Young

In the time since the President signed the Families First Coronavirus Response Act (FFCRA or the Act) into law a few days ago, employers have asked many questions about how the new legislation will affect them once it goes into effect. To answer these questions, the U.S. Department of Labor (DOL) Wage and Hour Division (WHD) recently issued its first round of published guidance for employers.
The DOL guidance addresses critical questions employers may face in response to the (i) Emergency Family and Medical Leave (FML) Expansion Act, which adds a basis for FMLA leave related to employees whose children’s schools closed due to an emergency order, and (ii) Emergency Paid Sick Leave Act, which requires emergency paid sick leave for certain COVID-19 related absences, in addition to any PTO that the employer already provides.
DOL Guidance for the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act
In addition to providing a detailed overview of which employers and employees are covered and the duration of leave and calculation of pay under the FFCRA (explained in depth here), the WHD guidance provided answers to several previously unanswered questions. The latest guidance provides as follows:
Effective Date:

  • The FFCRA’s paid leave provisions are effective on April 1, 2020, not April 2, 2020 as previously indicated, and apply to leave taken between April 1, 2020 and December 31, 2020.
  • The FFCRA is not retroactive. Leave eligibility begins April 1, 2020. Therefore, if an employer is currently offering an employee paid sick time due to COVID-19 concerns, these employees would be still be eligible for 80 hours of emergency paid sick leave as of April 1, 2020.

FFCRA Coverage:

  • Covered employees who qualify towards the 500-employee threshold under the FFCRA include:
    • All full-time and part-time employees within the United States, including any State of the United States, the District of Columbia, or any Territory or possession of the United States;
    • Employees on leave;
    • Temporary employees who are jointly employed by the employer and another employer (regardless of which employer maintains the employee’s payroll); and
    • Day laborers supplied by a temporary agency (regardless of whether the employer is the temporary agency itself or the client firm of the temporary agency, as long as there is a continuing employment relationship).
  • For purposes of calculating the 500-employee threshold:
    • The number of employees is determined on the date the employee takes leave.
    • A corporation (including its separate establishments or divisions) is a single employer and its employees must each be counted towards the 500-employee threshold.
    • If two entities are found to be joint employers under the FLSA, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency FML Expansion Act.
    • For purposes of the Emergency FML Expansion Act, if two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave.
    • Independent contractors are not covered for purposes of the 500-employee threshold.
  • Small businesses with fewer than 50 employees will be required to document why they meet certain criteria set forth by the DOL to qualify for an exemption to the FFCRA, which will be established by the DOL in a forthcoming regulation. We will update you when this regulation is published.

Interaction of the Emergency FML Expansion Act and Paid Sick Leave Act:

  • An employee may be eligible for both types of leave, but only for a total of twelve weeks of paid leave.
  • Employees who qualify under the Emergency FML Expansion Act may use 80 hours of paid sick leave under the Emergency Paid Sick Leave Act for the first ten workdays. After the first ten workdays have elapsed, a covered employee will receive 2/3 of his/her regular rate of pay for the hours he/she would have been scheduled to work in the subsequent ten weeks under the Emergency FML Expansion Act.
  • Importantly, an employee can only receive the additional ten weeks of expanded family and medical leave under the Emergency FML Expansion Act for leave to care for a child whose school or place of care is closed or if child care provider is unavailable, due to COVID-19 related reasons.

The published guidance includes a Fact Sheet for Employers (linked here), Fact Sheet for Employees (linked here), and a Questions and Answers document (linked here). The DOL stated it will provide a workplace poster required for most employers later this week, as well as additional facts sheets and guidance. We will update you when the DOL issues this information.
Additional Information: 
The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.
FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Labor & Employment, Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.
You can also contact your FMG relationship partner or email the team with any questions at coronavirustaskforce@fmglaw.com.
**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce educational content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

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