On March 25, 2020, the U.S. Department of Labor (“DOL”) issued new guidance for employers regarding paid leave under the Families First Coronavirus Response Act (“FFCRA”). While we await the DOL regulations called for under the FFCRA, this guidance provides initial answers for employers trying to adjust to new obligations in the time of COVID-19.

Non-Enforcement Period under the FFCRA:

In its Field Assistance Bulletin No. 2020-21, the DOL announced it 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 will deem an employer to have acted “reasonably” and in “good faith” when:

1. The employer remedies any violation, including by making all affected employees whole as soon as possible.
2. The violation of the Act was not “willful.”
3. The Department receives a written commitment form the employer to comply with the Act going forward.

After April 17, 2020, the enforcement stay will be lifted, and the DOL will enforce violations of the FFCRA.

Employers must post FFCRA Notice:

Under the FFCRA, employers must post a notice to employees of their rights under the FFCRA. A copy of the required notice is provided by the DOL here.

In a FFRCA Notice Frequently Asked Questions, the DOL addressed thirteen (13) questions regarding the posting of the FFCRA Notice. Among the questions answered, DOL stated that the FFCRA Notice must be posted in a conspicuous place on the premises or an employer may satisfy this requirement by emailing or direct mailing this notice to employees or posting this notice on an employee information internal or external website.

DOL FFCRA “Questions and Answers”:

Pending the regulations called for under the FFCRA, the DOL has addressed common questions in a FFCRA Q&A. Some of the questions answered include:

• How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?
  A part-time employee is entitled to leave for his or her average number of hours worked in a two-week period.
• When calculating pay due to employees, must overtime hours be included?
  Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.
• If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact?
  You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical 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. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.
• Is all leave under the FMLA now paid leave?
  No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken 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.

Review the complete Q&A here: Families First Coronavirus Response Act: Questions and Answers

Sugarman Rogers is closely following the quickly evolving landscape for employers during the COVID-19 pandemic. If you have questions or need compliance assistance, please contact Christine M. Netski or Gwen Nolan King.

Related People

Christine M. Netski

Managing Partner

617.227.3030 Email Christine