March 30, 2020 - Updated Department of Labor Guidance
The Department of Labor continues to issue additional guidelines for the Families First Coronavirus Act (FFCRA) regarding emergency paid sick leave and expanded FMLA ("FFCRA Leave"). Previously, it seemed like employees who were employed on April 1, even if they had been furloughed, would be eligible for FFCRA leave if they met one of the six criteria and were employed as of April 1, 2020. The new guidance, however, changes that interpretation and makes clear that if you have temporarily closed your business or furloughed employees, they are not eligible for FFCRA leave.
Pursuant to the new DOL guidelines, an employee is not eligible for FFCRA leave if on or after April 1, 2020:
the employer is open but furloughs the employee because it does not have enough work or business
the employer closes the employee's worksite because of lack of business or pursuant to a federal, state, or local directive
Rather than conducting a temporarily lay off, an employer may now furlough employees and continue paying their health benefits without also being required to provide FFCRA leave.
March 21, 2020 - Summary of the Families First Coronavirus Response Act (FFCRA)
Emergency Paid Sick Leave Act
(Effective April 1, 2020 – December 31, 2020)
Covered Employer: fewer than 500 employees
FLSA integrated enterprise analysis is likely to be used to determine number of employees: (1) Related to Each Other, (2) Unified Operation, (3) Common Control, and 4) Common Business Purpose
Covered Employee: No waiting period or minimum length of employment, may be used immediately
Reasons for Use: Paid sick leave to the extent employee is unable to work or telework because:
Subject to COVID-19-related federal, state, or local quarantine or isolation order
Advised by health care provider to self-quarantine due to COVID-19 concern
Caring for individual subject to such an order or advice to self-quarantine Caring for son or daughter if school or child care closed due to COVID-19 precautions
Substantially similar conditions specified by Secretary of HHS consulting with Secretary of Treasury and Secretary of Labor
Employers of health care provider/emergency responders may elect to exclude employees
Paid Hours:
Full-time employees: 80 hours
Part-time employees: hours equal to two-week average
Rate of Pay:
For employee’s own care [Reasons 1-3 above]: employee’s regular rate of pay; capped at $511/day or $5,110 in total
For care of others [Reasons 4-6 above]: two thirds of employee’s regular rate, capped at $200/ day or $2,000 in total
Exclusion:
Employers of certain health care providers or emergency responders may elect to exclude such employees from the application of this rule.
The Secretary of Labor has authority to issue regulations exempting small employers (fewer than 50 employees). It is unclear when, or if, this will happen.
Miscellaneous:
Cannot require employee to search for or find replacement to cover sick time
Cannot require exhaustion of other paid leave first
No carryover of unused time and no payout if unused; Requirements expire on December 31, 2020
Posting requirement – poster coming from DOL no later than 7 days after enactment
No retaliation against employees for using this leave
Penalty for non-compliance: Treated as failure to pay minimum wages and subject to liquidated damages and attorneys’ fees
Emergency FMLA Expansion Act
(Effective April 1, 2020 to December 31, 2020)
Expansion: In addition to regular FMLA eligibility, leave available for qualifying need related to a public health emergency with respect to COVID-19 declared by a federal, state, or local authority
Covered Employer: fewer than 500 employees
FMLA integrated enterprise analysis is likely to be used to determine number of employees: (1) common management, (2) interrelation between operations, (3) centralized control of labor relations, and (4) degree of common ownership or financial control.
Covered Employee: employed at least 30 days
Reason for Use: Available to the extent the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency
Leave:
Unpaid for first 10 days, but employee can elect to substitute vacation, medical or sick leave (including the sick leave in in the Emergency Paid Sick Leave Act above)[1]
Paid after first 10 days an amount not less than 2/3 regular rate of pay[2] and the number of hours the employee would normally be scheduled to work, not to exceed $200/day and $10,000 in total
Exclusion: Employers of certain health care providers or emergency responders may elect to exclude such employees from the application of this rule.
Miscellaneous:
For employers with fewer than 25 employees, there are limitations on the requirement of restoration to position[3]
Secretary of Labor may issue regulations excluding
certain health care providers,
emergency responders,
small businesses with fewer than 50 employees from these requirements would jeopardize the viability of the business as a going concern
[1] References Section 102(d)(2)(B), which says employee may elect or employer may require, but only includes employee election language.
[2] As defined under FLSA 29 USC 207(e), includes details for varying schedule calculations.
[3] Restoration to position does not apply if the position held when the leave commenced does not exist due to economic changes or other changes in operating conditions that affect public health and are caused by the public health emergency, employer makes reasonable efforts to restore the employee to equivalent position with equivalent benefits and pay, and if those efforts fail, to contact the employee if an equivalent position becomes available for one year beginning either on the date on which the leave concludes or 12 weeks after the employee’s leave commences.