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U.S. DEPARTMENT OF LABOR ISSUES FIRST INSIGHTS INTO FFCRA

The U.S. Department of Labor has taken several recent actions to assist employers to comply with the Families First Coronavirus Response Act (FFCRA).  The DOL has made available a model poster, issued a Field Assistance Bulletin regarding enforcement of the FFCRA, and issued a Questions & Answers alert clarifying several aspects of the FFCRA.  This client alert walks through each DOL action.

First, the DOL made available a model notice for employers to post and distribute to its workforce.  The poster can be found here.  Covered employers can comply with their notice obligation by emailing the notice to active employees, or posting the notice on an internal or external website.  By posting the notice on a website, an employer also will ensure that new hires receive the notice as well.  Of course, when employees are permitted to return to the workplace on a regular basis, then a hard copy of the notice can also be posted with all other required governmental notices in a lunch or break room.

Second, the DOL issued a Field Assistance Bulletin, the text of which can be found here. The Bulletin provides guidance regarding a 30-day non-enforcement period applicable to the FFCRA, running through April 17, 2020.  During the non-enforcement period, the DOL will not institute formal action to enforce the FFCRA against non-compliant employers that have made "reasonable, good faith efforts to comply with the Act."  However, for this non-enforcement to apply, an employer must:  (1) "remed[y] any violations, including by making all affected employees whole as soon as practicable;" (2) not have "willfully" violated the FFCRA; and (3) provide the DOL with a written commitment to comply with the FFCRA in the future.  The non-enforcement period is not permission to ignore the FFCRA; covered employers still must comply with the FFCRA.

Third, to assist employers with their compliance obligations, the DOL issued a "Questions and Answers" alert regarding employer obligations and employee rights under the FFCRA.  The DOL alert can be found here

The Q&A states that the DOL will be separately issuing implementing regulations, but offered several helpful insights to clarify the FFCRA:

  • The FFCRA is effective on April 1, 2020.

    • The FFCRA did not include a clearly articulated effective date, providing instead that it would become effective "not later than 15 days after the date of enactment of this Act," leaving many to speculate that the effective date would be April 2, 2020 (which was 15 days after President Trump signed the law on March 18, 2020). The DOL, however, has now clarified that the law becomes effective on April 1, 2020, coinciding with the first day of the second quarter of 2020.

  • The DOL clarified the term "covered employer."

    • The DOL clarified that the FFCRA applies to employers with fewer than 500 employees if, at the time an employee takes leave, the employer employs fewer than 500 full-time and part-time employees within the United States and its Territories. The FFCRA  provides that the "fewer than 500 employees" was to be substituted for the FMLA's language of "50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year."  The FFCRA does away with the FMLA's lookback counting mechanism, and instead substitutes a snapshot taken at the time each employee seeks to take a leave (while counting all employees that are then on leave).

  • The DOL clarified that the established joint employer and integrated-employer tests will apply to the calculation of whether a "covered employer" has fewer than 500 employees.

    • The DOL clarified that the FLSA's joint employer test will be used to determine if a company constitutes a "covered employer," whereby all common employees of the joint employers are counted for both the paid sick leave and expanded family and medical leave portions of the FFCRA.

    • The DOL further clarified that the FMLA's integrated employer test will still be used to count the total number of employees solely for purposes of the family and medical leave portion of the FFCRA, but not for paid sick leave.

    • As expected, independent contractors are not counted as employees under either the FFCRA's paid sick leave or expanded family and medical leave provisions.

  • The DOL noted that it will be issuing regulations establishing the criteria for employers with fewer than 50 employees to meet in order to qualify for the small business exemption under the FFCRA.

  • The DOL explained how to calculate a part-time employee's average daily hours for purposes of the paid sick leave and expanded family and medical leave.

    • To calculate the amount of leave part-time employees are entitled to when their hours vary each week, an employer should use a six-month average to calculate their average daily hours. This average daily hour calculation is then to be used to determine the number of hours per day a part-time employee is entitled to be paid for sick leave for a two-week period, and to determine the hours per day of expanded family and medical leave a part-time employee is entitled to take and be paid for up to ten weeks after the initial two-week period.

  • The DOL clarified that the manner in which overtime hours are included in the FFCRA calculations for paid leave differ depending on whether the leave is for extended family and medical leave or paid sick leave.

    • For emergency family and medical leave under the FFCRA:

      • A covered employer must pay an employee for all hours normally worked in a workweek, even if that exceeds 40 hours a week. So, if an hourly employee normally works a 50-hour workweek, then the employee is entitled to paid family and medical leave based on a 50-hour workweek. 

      • The DOL clarified, though, that employers do not need to include premium pay for overtime hours in calculating the pay due under the FFCRA's family and medical leave provision.

    • For paid sick leave under the FFCRA:

      • A covered employer must only provide a total of up to 80 hours of paid sick leave over a two-week period. So, the DOL clarified, an employee who normally works a 50-hour workweek would be entitled to take 50 hours of paid sick leave in the first week, but only 30 hours of paid sick leave in the second week under the FFCRA's paid sick leave law.

      • The DOL also clarified that employers do not need to include premium pay for overtime hours in calculating the pay due under the paid sick leave provision of the FFCRA.

    • The DOL explained how employers should calculate the "regular rate of pay" to be used to determine the employee's rate of pay for paid leave.

      • Under the FLSA, a regular rate of pay is calculated on a workweek-by-workweek basis, dividing total compensation by the total numbers of hours worked in the workweek. 29 C.F.R. § 778.111.

      • Under the FFRCA, the regular rate of pay used to calculate the paid leave can either be determined by calculating "the average of your regular rate over a period of up to six months prior to the date on which you take leave," or by "adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period."

    • The DOL clarified that the amount of paid leave available to an employee of a covered employer under the FFCRA will vary depending on the reason for the leave.

      • If the employee is taking paid sick leave because the employee is unable to work or telework because the employee (1) is "subject to a Federal, State, or local quarantine or isolation order related to COVID-19"; (2) has been "advised by a health care provider to self-quarantine due to concerns related to COVID-19"; or (3) is "experiencing symptoms of COVID-19 and are seeking a medical diagnosis," then the employee is entitled for each hour of leave the greater of: (a) their regular rate of pay; (b) the federal minimum wage in effect under the FLSA; or (3) the applicable State or local minimum wage.  This amounts to no more than $511 per day, or $5,110 total for the entire 10-day paid sick leave period.

      • If the employee is taking paid sick leave because the employee is (1) "caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19"; (2) "caring for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons"; or (3) "experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services," then the employee is entitled to compensation at only 2/3 of the greater of the amounts above. That would amount to a maximum of $200 per day, or $2,000 over a two-week period.

      • If an employee takes the expanded family and medical leave, then the employee may take the paid sick leave described above for the first 10 days of the leave (or substitute available leave under the employer's policies), with the remaining 10 weeks being at 2/3 of the regular rate of pay for the hours normally scheduled to work. But, the DOL clarified that such an employee is not entitled to more than $200 per day or $12,000 total for 12 weeks of leave that includes both paid sick leave and expanded family and medical leave "when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons."

    • Employees may only take a total of 10 days of sick leave for any combination of qualifying reasons. For example, employees are entitled to 10 days for their own quarantine, but they are not entitled to an additional 10 days for another qualifying reason.

    • Employers that provided paid leaves prior to April 1, 2020, must still provide the mandatory amount of paid leave available under the FFCRA beginning on April 1, 2020. Employers that generously provided leave starting in mid-March, must still adhere to the law as of April 1, 2020 – there is no credit given for leave made available prior to April 1, 2020.  Likewise, the FFCRA is not retroactive to the period prior to April 1, 2020.

    • FMLA leave for reasons normally protected by the FMLA remains unpaid; not all FMLA has become paid leave under the FFCRA.

    • To be entitled to expanded family and medical leave under the FFCRA, an employee must have been employed for 30 calendar days prior to the day the employee seeks to take the leave. Temporary employees subsequently hired onto a full-time basis may count any days worked as a temporary employee toward the 30-day eligibility period.

If you have specific questions about the FFCRA, or any other employment-related questions about COVID-19 and its impact on your business, please contact a Goldberg Kohn Labor and Employment attorney.



March 25, 2020

Questions? Please Contact:

Michael Sullivan
312.201.3963
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Kristen Jones
312.863.7139
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Jon Klinghoffer
312.201.3887
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Meredith Kirshenbaum
312.201.3933
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David Morrison
312.201.3972
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Labor & Employment Practice Group
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