Families First Coronavirus Response Act

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA”). The legislation, a response to the pandemic COVID-19, also referred to as the “novel coronavirus,” is an emergency supplemental appropriations act designed to provide relief and health care assistance during and as a result of the COVID-19 pandemic.

The FFCRA includes eight divisions that cover various areas of American life and provides a broad range of federal assistance. The two paid leave provisions of the Act are the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act (the “Emergency FMLA Expansion Act”). Other significant provisions include nutritional assistance, medical services, emergency unemployment insurance, testing for COVID-19, and employer tax credits for employee costs associated with both paid leave provisions.

The FFCRA’s two paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020. Neither paid leave provision is retroactive.

The FFCRA gives the Secretary of Labor the authority to issue regulations, instructions, and guidance to implement the Emergency Paid Sick Leave Act, the Emergency FMLA Act, and assistance and funding of unemployment compensation. On March 24, 2020, the United States Department of Labor’s (the “DOL”) Wage and Hour Division published guidance regarding both paid leave provisions of the FFCRA and wages and hours worked under the Fair Labor and Standards Act (“FLSA”). The guidance is available here: https://www.dol.gov/agencies/whd/pandemic. Additional regulations are expected in April 2020.
This bulletin focuses on the two paid leave provisions of the FFCRA, including the guidance published by the DOL.

Covered Employers
Under both paid leave provisions, certain employers must provide eligible employees with paid leave for COVID-19-related reasons. Covered employers are certain private and public employers with fewer than 500 employees. Most federal employees are covered by Title II of the FMLA, and thus are not covered by the Emergency FMLA Expansion Act. The Emergency Paid Sick Leave Act does cover federal employees. The DOL has indicated that certain provisions of FFCRA may not apply to some employers with fewer than 50 employees if doing so would jeopardize the viability of the business.

Eligible Employees
Under the Emergency Sick Leave Act, all employees of covered employers are eligible for up to two weeks of paid sick leave for COVID-19-related reasons. Under the Emergency FMLA Expansion Act, employees who have been employed by an employer for at least 30 calendar days are eligible to receive 10 weeks of paid leave1 to care for a child under certain circumstances related to COVID-19 (including school closings and child care unavailability due to COVID-19). Eligible employers who employ health care providers or emergency responders may choose to exclude such employees from both paid leave provisions.

The Emergency Paid Sick Leave Act
Notable rights and requirements for paid leave under the Emergency Paid Sick Leave Act include:

• Two weeks (up to 80 hours) of paid sick leave at the eligible employee’s regular rate of pay or the applicable minimum wage, whichever is higher, (up to $511 per day and $5,110 in the aggregate (over a two-week period)) where an eligible employee cannot work due to quarantine imposed by a governmental entity (federal, state, or local) or on the advice of a healthcare provider and/or the eligible employee is quarantined because she is experiencing COVID-19- related symptoms and is seeking medical diagnosis; or
• Two weeks (up to 80 hours) of paid sick leave at two-thirds the eligible employee’s regular rate of pay or two-thirds the applicable minimum wage, whichever is higher, (up to $200 per day and $2,000 in the aggregate (over a two-week period)) if an eligible employee is unable to work because of a need to care for a quarantined individual (due to order of a governmental entity or a healthcare provider), or to care for a child under the age of 18 whose school is closed or child care is unavailable due to COVID-19-related reasons, and/or the eligible 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.
  

The Emergency FMLA Expansion Act
Under the Emergency FMLA Expansion Act, eligible employees receive up to 10 weeks FMLA paid leave at two-thirds the employee’s regular pay rate of pay or two-thirds the applicable minimum wage, whichever is higher. This benefit provides up to $200 per day and $12,000 in the aggregate if the employee is unable to work due to child care needs when schools are closed, or child care is unavailable because of COVID-19-related reasons. For payments made under the Emergency FMLA Expansion Act, covered employers must account for overtime hours and pay 4 employees based on the employee’s regularly scheduled hours, even if that is more than 40 hours in a week.

Additional Employer Requirements and Prohibitions

• Covered employers are required to post FFCRA requirements in a conspicuous location on their premises;2
• Covered employers are prohibited from disciplining, discharging, or discriminating against employees who take paid sick leave under the FFCRA, or who file a complaint or institute other proceedings pursuant to the FFCRA;
• Covered employers who violate the Emergency Paid Sick Leave Act, or who unlawfully terminate, discipline, or discriminate against an employee, are subject to the enforcement provisions of the FLSA (including investigation and monetary enforcement procedures enforced by the Equal Employment Opportunity Commission (“EEOC”)).
• Covered employers who violate the Emergency FMLA Expansion Act are subject to the enforcement provisions of the FMLA, which include investigation and potential court action by the DOL’s Wage and Hour Division.
• The DOL will observe a temporary period of non-enforcement for the first 30 days after the FFCRA’s enactment, 3 so long as the covered employer has acted reasonably and in good faith to comply with the FFCRA. “Good faith” exists when a covered employer remedies a violation and makes an employee whole as soon as practicable, the violations were not willful, and the DOL receives a written commitment from the covered employer stating that the employer will comply with the FFCRA in the future.
  
  

Tax Credits for Covered Employers
Covered employers are eligible for dollar-for-dollar tax credit reimbursement for all qualifying wages paid pursuant to the FFCRA. Covered employers are also eligible to receive tax credits pursuant to the FFCRA for those funds paid or incurred to maintain health care insurance.
Covered employers must document eligible employees’ FFCRA leave to obtain tax credits. Eligible employees must provide their employers with documentation in support of FFCRA leave that includes the following information:

• the employee’s name;
• qualifying reason for requesting leave;
• a statement that the employee is unable to work, including telework, for what reason, and the date(s) for which leave is requested; and
• documentation of the reason for the leave, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised an employee to self-quarantine.
  

Lawrence & Bundy LLC attorneys are here to help answer any questions you may have regarding the FFCRA, and to help with all of your labor and employment needs during this time. Please contact any of the Lawrence & Bundy lawyers with whom you work.

1 The first 10 days of leave under the Emergency FMLA Expansion Act are unpaid, but eligible employees may be able use paid leave under the Emergency Paid Sick Leave Act or accrued paid leave to provide income during this 10-day period.

2 The DOL’s model notice is available here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

3 The DOL’s intent appears to be that the grace period runs from the enactment date. The DOL’s Field Assistance Bulletin No. 2020-1 provides guidance to Wage and Hour Division staff regarding the FFCRA’s non-enforcement period, and states: “The Department 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.” The DOL’s Field Assistance Bulletin No. 2020-1 can be found here: https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1. The DOL’s guidance entitled “Families First Coronavirus Response Act: Employer Paid Leave Requirements,” however, states: “The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect . . .” https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave (emphasis added).