DOL Releases New Guidance Regarding the FFCRA

The President signed the Families First Coronavirus Response Act (FFCRA) on March 18, 2020, and it goes into effect on April 1, 2020. Note that previous guidance indicated that the bill would take effect on April 2. This week the Department of Labor (DOL) published several guidance documents to help employers be compliant by the April 1 effective date.

The guidance comes in the form of a Fact Sheet for Employees, a Fact Sheet for Employers, and a Questions and Answers Sheet.

Some of the key points are as follows:

  • “Paid sick leave” means paid leave under the Emergency Paid Sick Leave Act. “Expanded family and medical leave” – means paid leave under the Emergency Family and Medical Leave Expansion Act. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act are provisions in the FFCRA.
  • The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.
  • How to determine the 500 employee threshold: You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include:
    • employees on leave;
    • temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll);
    • and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship).
  • Small business exemption for employers with fewer than 50 employees: to elect the small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.
    • You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.
  • The paid sick leave and expanded family and medical leave requirements are not retroactive.
  • Generally, the FFCRA provides that covered employers must provide to all employees:
    • Two weeks (up to 80 hours) of expanded family and medical 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 expanded family and medical 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.
    • Additionally, a covered employer must provide to employees that it has employed for at least 30 days:
      • Up to an additional ten weeks of 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.
    • Both the Question and Answer Sheet and the Fact Sheet for Employers contain detailed information on how to calculate the regular rate for employees under the FFCRA.
    • Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements. Employers Council Poster services will notify poster subscribers when the updated posters are ready.
    • Tax Credits: Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website.

We anticipate this guidance is the first of more to come. We’re here to help; please contact Employers Council with questions.