Back to Publications

Families First Coronavirus Response Act (FCRA) DOL Guidance Issued

Yesterday the United States Department of Labor’s Wage and Hour Division (“Department”) announced its first round of published guidance on the Families First Coronavirus Response Act (“FFCRA”) which takes effect April 1, 2020. The guidance included a (1) Fact Sheet for Employees, (2) Fact Sheet for Employers, and (3) Questions and Answers. The Department made clear this was its first round of guidance.

What Employers Need to Know

The FFCRA requires employers to provide employees with paid leave, either for the employee’s own health needs or to care for family members as a result of COVID-19. The FFCRA includes the Emergency Family and Medical Leave Expansion Act (“Family and Medical Leave Act”) and the Emergency Paid Sick Leave Act (“Paid Sick Leave Act”) (collectively referred to as the “Acts”):

  • The Department administers and enforces the FFCRA’s paid leave requirements.
  • The provisions of both acts are effective on April 1, 2020 and apply to a leave taken between April 1, 2020 and December 31, 2020.
  • The Acts provisions apply to covered employers, described as “certain public employers, and private employers with fewer than 500 employees.”
  • Eligible employees for the Paid Sick Leave Act are all employees of covered employers and eligible employees for the Family and Medical Leave Act are employees employed for at least 30 days.
  • The Paid Sick Leave Act provides eligible employees with two weeks of paid sick time for specified reasons related to COVID-19. The Family and Medical Leave Act provides eligible employees with an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.

 

Reason for Leave Duration of Leave Calculation of Pay
1.   Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19. A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a two-week period).
2.   Employee has been advised by a health care provider to self-quarantine related to COVID-19. A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a two-week period).
3.   Employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis. A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
4.   Employee is caring for an individual subject to an order, as described in (1), or self-quarantine, as described in (2). A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a two-week period).
5.   Employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period. Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).
6.   Employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury. A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period. Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a two-week period).

 

The publication provides the following new guidance:

  • The FFCRA takes effect April 1, 2020.
  • The FFCRA provides that employers will be subject to penalties and enforcement by the Department for violations of the provisions.
    • Importantly in the new guidance the Department stated it will observe a temporary period of non-enforcement for the first 30 days after the FFCRA takes effect, so long as the employer acted reasonably and in good faith. The Department stated that for purposes of non-enforcement, “good faith exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations are not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.”
  • The Department guidance explained that employers should calculate number of employees as follows:
    • An employer has fewer than 500 employees if, at the time an employee’s leave is to be taken, the employer employs fewer than 500 full-time and part-time employees within the United States. This includes any State, the District of Columbia, or any Territory or possession of the United States. Employers should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency. Workers who are independent contractors under the Fair Labor Standards Act (“FLSA”), rather than employees, are not considered employees for purposes of the 500-employee threshold.
    • In general, separate companies will be treated as separate employers unless companies are sufficiently integrated to be considered a single enterprise under the FLSA for purposes of the Paid Sick Leave Act or single employer under the FMLA for purposes of the Family and Medical Leave Expansion Act.
  • Under the FFCRA, employers with fewer than 50 employees may qualify for exemption from the requirements to provide child-care related paid sick leave and expanded family and medical leave if doing so would jeopardize the viability of the business as a going concern.
    • The Department guidance states that to elect the exemption, businesses should document why they meet the criteria set forth by the Department (which will be addressed in forthcoming regulations). At this time, the Department’s guidance notes that businesses “should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.”
  • Employers must post a notice of FFCRA requirements in a conspicuous place on its premises. The Department issued sample posters on its website.

The guidance reiterates the following points about the FFCRA:

  • Covered employers qualify for dollar-for dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. The Fact Sheet defines qualifying wages as “those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps.”  Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.
  • Employers may not discharge, discipline, or otherwise discriminate against any employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA, files a complaint, or institutes a proceeding under or related to the FFCRA.
  • Employers with part-time employees must provide them with leave equal to the employee’s average hours worked in a two-week period. Employers calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, employers can use a six-month average to calculate the average daily hours. Part-time employees may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.
  • Employers pay employees based on their regular rate of pay. This can be calculated as follows:
    • The regular rate is the average of an employee’s regular rate over a period of up to six months prior to the date of leave. If an employee has not worked for six months, the regular rate used is the average of the employee’s regular rate of pay for each week he or she has worked for the employer.  Commissions, tips, or piece rate will be incorporated into the regular rate of pay calculation.
    • Overtime must be included in the calculation for pay under the Family and Medical Leave Act, as the expansion requires employers to pay an employee for the hours the employee would have been normally scheduled to work. Overtime does not need to be calculated for the Paid Sick Leave Act, as it only requires that paid sick leave be paid up to 80 hours over a two-week period.
  • Employers need to be aware of the interaction between the two types of leave specified in the Act.  Employees are eligible for both types of leave, but only for a total of 12 weeks paid leave.  An employee may take both paid sick leave and expanded family and medical leave to care for a child whose school or place of care is closed, or a child care provider is unavailable, due to COVID-19 related reasons.  The Paid Sick Leave Act provides for an initial two weeks of paid leave.  This covers the first ten workdays of the Family and Medical Leave Act, which are otherwise unpaid under the expansion unless an employee elects to use existing vacation, personal, medical or sick leave under an employer’s existing policy.

We are here to help answer specific questions and offer advice on your options. Feel free to contact any member of our Labor & Employment group.

Follow Hinckley Allen on Twitter and LinkedIn for the latest news and updates.