Yesterday, the Department of Labor issued preliminary guidance concerning the implementation of the Families First Coronavirus Response Act (the “FFCRA”), which was passed just six days ago.  The guidance provides some clarity on a few key issues:

  • When does the FFCRA take effect? The effective date is now April 1, 2020 (not April 2, as was originally planned), and applies to leave taken through December 31, 2020.
  • How do I count my employees? Employers with fewer than 500 employees at the time leave is to be taken are subject to the FFCRA. Full and part time employees within the United States, its territories, and possessions are included in the headcount.
  • What entities constitute my company? A corporation is generally considered to be a single entity. Related corporations are separate, unless they satisfy the FLSA’s joint employer test.  As a general rule, the FMLA’s integrated employer test determines whether separate entities are separate employers.  You may be able to group the employees of related entities together, but make sure you run this by your attorney first if it would result in having 500 or more employees.
  • Paid sick leave compensation: Sick and quarantined employees receive the greater of their regular pay rate, or applicable federal state and local minimum wages for two weeks, for a maximum benefit of $511/day and $5,110 total. Those taking paid sick leave to care for the sick (or, have a “substantially similar” condition to COVID-19) receive 2/3 of the same amounts.  Employees cannot be compensated both for being sick and a caretaker.
  • Expanded medical leave compensation: The first ten days of emergency medical leave are unpaid but may be covered by emergency paid sick leave or accrued PTO. After the first 10 days, employees taking expanded medical leave “because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons” receive 2/3 of the amounts described above, for an additional ten weeks.
  • Are these benefits retroactive?   The benefits are only required as of April 1, 2020.

Employers may also find the following guidance useful when assessing the FFCRA:

  • Is the Department of Labor enforcing the FFCRA immediately?   “The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.”  Presumably, the non-enforcement period will be extended further.
  • Are additional regulations forthcoming that will apply to employers with fewer than fifty employees? Yes, regulations are expected next month.
  • My place of business is essential and open. Do I need to put a poster on the wall outlining the CCFRA?  Yes.  A model notice poster is expected to be released on March 25, 2020.
  • I have fewer than fifty employees. Must I provide paid sick leave and expanded family and medical leave?  Yes, unless compliance would jeopardize your business “as a going concern.”  Forthcoming regulations will detail requirements for the small business exemption, but in the meantime, carefully document your company’s financial and employee status.
  • Is there a webinar that will help me understand all things related to coronavirus and the workplace? Murtha’s own Matthew Curtin will be co-presenting through the Connecticut Bar Association on March 25, 2020 at 10am. Register here. Matthew, Sal Gangemi, and Tricia Reilly will also present a free Murtha-sponsored webinar on March 27, 2020 at 12 p.m. Join here.

The guidance contains detailed instruction on how to determine employee wages and hour eligibility for purposes of calculating their benefits.

To illustrate the FFCRA’s Paid Sick Leave provision, in the time in which this post was written, the White House advised New York City residents and recent visitors to self-quarantine for fourteen days.  If your employees fit that description and cannot telework, they would be eligible for paid sick leave up to $511 per day.

We remain available to discuss COVID-19’s impact on your business and employees, and the accompanying and constant changes to the law.

Print:
EmailTweetLikeLinkedIn
Photo of Patricia E. Reilly Patricia E. Reilly

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices…

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices, and business disputes. In addition to maintaining a thriving litigation practice, Tricia counsels clients on a variety of employment-related issues including hiring, firing, and discipline; wage and hour; state and federal FMLA; sexual harassment investigations and prevention; Title IX; pregnancy and disability accommodation; and avoidance of employment discrimination liability.

Tricia is listed as a leading Labor and Employment Lawyer in Chambers USA.  She is listed in Best Lawyers in America®, and in 2017, Best Lawyers in America® recognized her as “Lawyer of the Year”, New Haven, Litigation – Labor and Employment. Tricia is a member of the American Bar Association, the Connecticut Bar Association and the New Haven County Bar Association.  She received her B.A. from Wesleyan University and her J.D. from University of California, Berkeley School of Law.

Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of…

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty, and other work-related common law claims. Sal also counsels clients on day-to-day issues involving workplace management and administration, including requests for reasonable accommodation for disabilities, for family and medical leave, and wage and hour issues.  He conducts employment law training on a variety of topics, including sexual harassment prevention and wage/ hour compliance.  He also drafts employment policies and agreements, and assists clients in auditing worker classification practices and policies both in the context of the Fair Labor Standards Act and state laws governing independent contractor determinations.

Photo of Matthew K. Curtin Matthew K. Curtin

Matthew Curtin is a Partner in the Litigation Department, the Chair of the Privacy and Cybersecurity Practice Group and a member of the Labor and Employment Practice Group.

In Matthew’s cybersecurity practice, he advises clients on compliance with state, federal and international privacy…

Matthew Curtin is a Partner in the Litigation Department, the Chair of the Privacy and Cybersecurity Practice Group and a member of the Labor and Employment Practice Group.

In Matthew’s cybersecurity practice, he advises clients on compliance with state, federal and international privacy laws including the Health Insurance Portability and Accountability Act (HIPAA) and the General Data Protection Regulation (GDPR). Matthew is particularly interested in advising his clients concerning employment privacy matters. Matthew is a member of the International Association of Privacy Professionals.

In Matthew’s labor and employment practice, he has successfully represented employers of all sizes concerning a wide variety of claims before state and federal courts, the National Labor Relations Board, the Connecticut State Board of Mediation and Arbitration, the Connecticut State Board of Labor Relations, the Connecticut Commission on Human Rights and Opportunities, and other various administrative agencies.

Matthew has substantial experience with collective bargaining negotiations, labor arbitrations, and labor relations. He regularly counsels senior management and human resources professionals concerning employment contracts, employment policies, hiring and termination procedures, workplace investigations, and harassment and discrimination avoidance.

Matthew has significant experience representing businesses in litigation concerning trade secret theft, unfair competition, and breach of non-competition and non-solicitation agreements.

Photo of Adam D. Friedland Adam D. Friedland

Adam D. Friedland is a member of the Firm’s Litigation Department and Labor and Employment Practice Group. He represents clients in a variety of commercial litigation disputes, and counsels on potential litigation risks associated with all aspects of labor and employment law, including…

Adam D. Friedland is a member of the Firm’s Litigation Department and Labor and Employment Practice Group. He represents clients in a variety of commercial litigation disputes, and counsels on potential litigation risks associated with all aspects of labor and employment law, including wage and hour, discrimination, post-employment restrictive covenant, and related claims.

Adam has successfully represented clients in state and federal court, administrative proceedings, and alternative dispute resolution forums from inception through resolution.