Yesterday, the U.S. Department of Labor issued guidance for the Families First Coronavirus Response Act (“FFCRA”), the emergency legislation signed by President Trump last week to address the ongoing COVID-19 pandemic. Among the Act’s provisions are measures to provide financial support for employees who are unable to work because of issues relating to COVID 19.[Update] Today, the U.S. Department of Labor also published posters that will satisfy the FFCRA’s requirement that employers must give notice to employees of their entitlements under the new law. There is one poster for federal employees and another poster for all other employees. The Department also published an FAQ about the posting requirements. The posters and FAQ can be accessed at this link: https://www.dol.gov/agencies/whd/pandemic.
The Act, which goes into effect April 1 and will expire on December 31, requires employers with less than 500 employees to provide paid short- and long-term leaves for certain qualifying reasons. While the Act specifies that covered employers qualify for dollar-for-dollar reimbursement through tax credits, the up-front payments by employers will present a difficult burden for many employers.
For short-term needs, covered employers must provide two weeks (up to 80 hours) of paid leave at an employee’s full regular rate of pay if the employee is quarantined (pursuant to Federal, State, or local government order or the advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. Employers must also provide two weeks (up to 80 hours) of paid leave at two-thirds the regular rate if the employee is unable to work because he or she must care for a qualified individual subject to quarantine, or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable due to COVID-19.
For long-term needs, employers must provide up to 10 additional weeks of paid leave at two-thirds the regular rate for employees who must care for children whose school or child care provider is closed due to COVID-19.
The DOL guidance attempts to fill in the gaps and answer some of the most common questions employees and employers will likely have relating to the new law. As such, the DOL has issued fact sheets (for both employees and employers), as well as a Questions and Answers section. Later this week, the DOL will also release a mandatory workplace poster and issue additional fact sheets and guidance.
The guidance addresses such topics as which workers count toward the 500-employee limit, and how the Act will differentiate employees and independent contractors. It also confirms that benefits must be paid at the “regular rate of pay,” a rate that must take into account such things as bonuses and commissions, in addition to an employee’s regular wages. The new guidance also announced that the new law will go into effect on April 1, and not April 2, as had been widely anticipated.
Another important topic is the Act’s effect on businesses of 50 or fewer employees. The Act empowers the DOL to issue regulations exempting such businesses where the paid leave requirements would jeopardize their business. According to the guidance, small employers (i.e., 50 or less employees) will need to document why their business meets certain criteria, which will be addressed in more detail in forthcoming regulations.
Links to the current fact sheets and Q&A guidance are located here:
Employer Fact Sheet: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
Employee Fact Sheet: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
We will be updating our blog as more information becomes available, and SHLC attorneys are available to answer any questions you may have about the new law. You can also find information for a wide range of COVID-19 employment issues at the SHLC Coronavirus Pandemic Employer Resources page, at https://www.suttonhague.com/coronavirus/. We also have downloadable webinars on this and related topics at our Calnevalaw.com website.