by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
March 26, 2020
With record speed for a governmental agency, the U.S. Department of Labor (DOL) has issued a respectable amount of information to help employers understand the brand spankin’ new Families First Coronavirus Response Act (FFCRA) enacted on March 18. Among other things, the Act:
- Expands the Family and Medical Leave Act to provide job-protected
leave when an employee is unable to work (or telework) due to a
need to care for the employee’s child under age 18 if the child’s
school or place of care has been closed or the child care provider
is unavailable due to COVID-19. - Provides paid sick leave for 6 qualifying reasons related to COVID-19.
We provided more details on the FFCRA in our blog post here. In addition, in collaboration with our sister company Reliance Standard, we have prepared an extensive set of Frequently Asked Questions. Thanks to my colleagues Kim Dunn and Nuri Noaz at RSL for their great work on the FAQs.
Here’s a quick look at new materials provided by the DOL as of yesterday, together with some surprise answers to questions.
FFCRA Questions and Answers
The DOL issued a Q&A guidance late on March 24, 2020. Here’s a summary of what it covers:
Effective April 1. The FFCRA provides that it will be effective “not later than 15 days after the date of enactment.” Most of the world counted on the calendar and assumed this would mean April 2, 2020. April Fool’s! The DOL has identified April 1, 2020, as the effective date. Go figure!
Size of Employer. The FMLA expansion and paid sick leave provisions apply only to private employers with fewer than 500 employees. In the Q&A the DOL has explained how to count employees to determine coverage:
- The point of measurement is at the time an employee’s requested leave is to be taken.
For employers hovering near that 500 threshold, this means that coverage (and whether
to provide the leave) could change day by day as the employer’s headcount fluctuates
over and under 500. - The count of employees includes full-time and part-time employees, employees on leave,
temporary employees jointly employed two employers (regardless of whose payroll the
employee is on), and day laborers supplied by a temp agency. Independent contractors
do not count (but remember it is very hard to establish a true independent contractor
arrangement). - Typically a corporation will be considered a single employer. However, the rules regarding
joint employers and integrated employers apply. You can find these rules explained in
the FMLA regulations here.
Public sector employers of any size appear to be covered but the Q&A states that additional FAQs on public employers will be forthcoming.
Paid Sick Leave – Hours and Rate of Pay. This benefit is available for all employees of employers with fewer than 500 employees, but the amount of leave depends on whether the employee is full time or part time (80 hours for full time and the equivalent of 2 weeks’ work for part time). Neither of these terms is yet defined. The Q&A addresses how to calculate the employee’s rate of pay and the employee’s hours of work (including for an employee with a variable schedule).
A welcome clarification is that the Act provides a one-time-only allotment of paid sick leave, not 80 hours/2 weeks per covered event. And, 80 hours means 80 hours. An employee who typically works 50 hours per week can take 50 hours of paid sick leave in one week but then will have only 30 hours in the next week. Still not clear is whether the paid sick leave can be used intermittently and/or at separate times for different covered events, up to the total maximum.
Applicability of Both Benefits. If an employee needs leave due to a school closure or daycare, they may be eligible for both the enhanced FMLA leave and pay (after 30 days of employment) and the paid sick leave (immediately upon employment). Because the first 10 days of FMLA for this reason is unpaid the employee can use the paid sick leave entitlement for that period, after which time the pay benefits of the enhanced FMLA would kick in.
Not Retroactive. The Act does not apply retroactively. The employer must give employees all of the leave and pay benefits required by the Act from April 1 on. Anything provided by the employer before that date does not satisfy its obligations (and also won’t qualify for the tax benefits).
Required Employer Notices
Each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises. For remote workers, an employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. The DOL issued the approved notice form on March 25. Here it is, along with a related FAQ: Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)
More to Come!
The DOL is authorized by the Act to issue certain regulations relating to both the expanded FMLA provisions and the paid sick leave, but no due date or deadline is provided. Regulations will cover at least the possible exemptions for health care providers and emergency responders, the small business exemption for crew with fewer than 50 employees if compliance would jeopardize the viability of the business as a going concern, and other regulations as necessary to carry out the paid sick leave provisions and ensure consistency between those and the expanded FMLA provisions.
For all things DOL and COVID-19-related, checkout the DOL’s ever-expanding pandemic website here.
Matrix Can Help!
Is it me, or does this seem to be drifting into something resembling the “new normal?” While it still feels a bit like the first time on a scary roller coaster, we are taking it in, figuring it out and helping each other – the way you’d hope. Keep checking back, and if you have specific questions we have armed our account managers with up to the moment answers that are refreshed daily. Just ask, and we at Matrix and Reliance Standard will do our best to keep you and your employees stay safe and informed.