As we reported in previous client alerts on March 17 and March 19, 2020, the Families First Coronavirus Response Act (the “FFCRA”) requires employers with fewer than 500 employees to provide eligible employees with emergency paid sick leave and expanded rights under the Family and Medical Leave Act (FMLA).

The U.S. Department of Labor (DOL) recently released some guidance on the FFCRA in the form of a Questions and Answers webpage. It also released the poster employers are required to post (or provide to employees), in order to give employees notice of their rights under the FFCRA. While the DOL did not indicate the date by which employers would need to post the notification, it stands to reason that it needs to be posted by April 1, 2020, the effective date of the FFCRA.

Effective Date of the FFCRA is April 1, 2020, through December 31, 2020

Importantly, the DOL has modified the effective date to be Wednesday, April 1, 2020, (not April 2, which had previously been the conventional understanding). The FFCRA is not retroactive. As a result, employers are not required to provide backpay to employees who were on leave for an FFCRA-qualifying reason before April 1. However, if an employer already provided paid leave pursuant to the requirements of the FFCRA before April 1, that leave will not count under the FFCRA.

Emergency Paid Sick Leave and Emergency FMLA Leave

As a reminder, covered employers must provide employees with up to 80 hours of emergency paid sick leave benefits to be used for the following Coronavirus-related absences:

1. The employee is subject to a federal, state, or local quarantine or isolation order for Coronavirus;
2. The employee is advised by a health care provider to self-quarantine due to Coronavirus concerns;
3. The employee is experiencing symptoms of Coronavirus and seeking a medical diagnosis;
4. The employee is caring for an individual who is under a quarantine or isolation order or has been advised to self-quarantine;
5. The employee is caring for a child whose school or child care has been closed due to Coronavirus;
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Employees using paid sick leave for purposes (1) through (3) must be paid their “regular rate of pay” (as defined for purposes of calculating overtime compensation), subject to a cap of $511/day and/or $5,110 in the aggregate. Employees using leave for reasons (4) through (6) above must be paid 2/3 of these amounts, subject to a cap of $200 per day and/or $2,000 in the aggregate.

For those employees who take leave pursuant to the expanded FMLA emergency leave (which is applicable only for reason (5)), the first ten days are unpaid (unless the employee substitutes the emergency paid sick leave or other accrued paid time off), but then for the remaining ten weeks, the employee must be paid 2/3 of his or her regular rate of pay, subject to a cap of $200 per day and $10,000 in the aggregate.

The DOL has made it clear that this leave is in addition to the required California state and local sick leave policies.

Employer Reimbursement and Tax Credit

As we previously mentioned, employers will be able to seek reimbursement and tax credits for emergency paid leave issued under the FFCRA. The IRS set up an informational page about this.

Mandatory Notice to Employees

The FFCRA requires that all employers provide notice to their current employees of the benefits available under this new law. The DOL released a poster for employers to use.

The DOL has also issued guidance about what employers do and do not need to do in connection with providing this notice.

Each covered employer must post a notice of these requirements in a conspicuous place on its premises. Because many employees are telecommuting, the DOL said that 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.

Employers do not have to provide this notice to employees who were recently laid off or terminated.

Referenced links:

https://www.greenbergglusker.com/publications/status-and-summary-of-the-federal-governments-pending-families-first-coronavirus-response-act/

https://www.greenbergglusker.com/publications/the-president-signs-the-families-first-coronavirus-response-act/

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

https://www.irs.gov/newsroom/treasury-irs-and-labor-announce-plan-to-implement-coronavirus-related-paid-leave-for-workers-and-tax-credits-for-small-and-midsize-businesses-to-swiftly-recover-the-cost-of-providing-coronavirus

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions

https://www.greenbergglusker.com/coronavirus-resource-center/

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We encourage you to visit Greenberg Glusker’s Coronavirus Resource Center and to contact us with any questions.