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.