The Department of Labor (DOL) continues to issue guidance regarding the Families First Coronavirus Response Act (FFCRA). The emergency sick leave law took effect on April 1, 2020.

Since the FFCRA was signed into law on March 18th, the DOL’s Wage and Hour Division has issued several rounds of guidance aimed at helping workers and employers navigate these novel leave provisions. The latest guidance includes questions and answers addressing critical issues about the new leave law.

“The response to the guidance we’ve published so far has illustrated the critical need that workers and employers have for this important information,” said Wage and Hour Division Administrator Cheryl Stanton. “This round includes some of the most common questions we are receiving and will help ensure that the American workforce has all the tools and information needed in these very trying times. We encourage everyone to check the Wage and Hour Division website frequently, as we continue to add guidance to help everyone understand what they are entitled to as we prepare for these vital new benefits to go into effect on April 1, 2020.”

Key Provisions of FFCRA

Generally, the FFCRA provides that qualifying employers must provide the following leave to all employees:

  • Two (2) 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 while seeking a medical diagnosis; or
  • Two (2) weeks (up to 80 hours) of paid sick leave at two-thirds (2/3) the employee’s regular rate of pay if:
    • 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. An additional ten (10) weeks of paid expanded family and medical leave at two-thirds (2/3) 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, provided that the employee has been employed for at least 30 days.

Does your Business Qualify under FFCRA?

The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to most private employers with fewer than 500 employees. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Does your Employee Qualify under FFCRA?

An employee is entitled to take leave related to COVID-19 if the employee is unable to work, including unable to telework, because the employee:

  1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. Has been advised by a health care provider to self-quarantine related to COVID-19;
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. Is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. Is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

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.

FFCRA Enforcement Delay 

On March 25, 2020, the Wage and Hour Division issued a Field Assistance Bulletin regarding the FFCRA’s temporary non-enforcement period. It states that the DOL will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made “reasonable, good faith efforts to comply with the Act.” For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.

Required Families First Coronavirus Response Act Notice

On March 24, 2020, the DOL published the required notice that employers must post pursuant to the FFCRA. Each covered employer must post the notice in a conspicuous place on its premises. Alternatively, employers can satisfy the posting requirement by emailing or direct mailing the notice to employees or posting the notice on an employee information internal or external website. The notice is available at https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

DOL Offers Guidance on Critical Compliance Issues

To date, the DOL has issued several rounds of guidance, including a Fact Sheet for Employers, a Fact Sheet for Employees, and Families First Coronavirus Response Act: Questions and Answers. The list of questions and answers now totals 59, reflecting the steep learning curve when it comes to compliance.

As an employer, you may have a plethora of questions. Below is a small sampling of those questions and their answers:

Do I qualify for leave for a COVID-19 related reason even if I have already used some or all of my leave under the Family and Medical Leave Act (FMLA)?

If you are an eligible employee, you are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under the FMLA. However, if your employer was covered by the FMLA prior to April 1, 2020, your eligibility for expanded family and medical leave depends on how much leave you have already taken during the 12-month period that your employer uses for FMLA leave. You may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If you have taken some, but not all, 12 workweeks of your leave under FMLA during the current 12-month period determined by your employer, you may take the remaining portion of leave available. If you have already taken 12 workweeks of FMLA leave during this 12-month period, you may not take additional expanded family and medical leave. 

When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act? 

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that: 

  • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;  
  • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or  
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

  • Employer employs fewer than 50 employees;
  • Leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • An authorized officer of the business has determined that at least one of the three conditions described in the question above is satisfied.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Maryam Meseha, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.