Client Alert – U.S. Department of Labor Issues First Set of Regulations to the Families First Coronavirus Response Act

March 26, 2020 in Client Alerts, COVID-19 Alerts, Employment Law

On March 24, 2020, the U.S. Department of Labor (DOL) began issuing implementing regulations for the Families First Coronavirus Response Act (FFCRA).  The first set of regulations state that the effective date of the FFCRA is April 1, 2020, not April 2, 2020 as originally anticipated.

The regulations note that the small business exemption criteria will be addressed in forthcoming regulations.  They do, however, provide guidance as to determining if a business is under the 500-employee threshold for coverage, stating that the number encompasses full-time and part-time employees within the United States, including those on leave, temporary employees, and day laborers supplied by a temporary agency.  The Fair Labor Standards Act (FLSA) joint employer rule and Family and Medical Leave Act (FMLA) integrated employer test both apply.

On the calculation of hours worked by part-time employees, the regulations note that part-time employees are entitled to leave based upon their average number of work hours in a two-week period.  If the average is unknown or the employee’s schedule varies, employers are directed to use a six-month average, or for employees who have been working for less than six months, the number of hours the employer and employee agreed that the employee would work upon hiring.

The DOL regulations clarify that if an employee is taking paid sick leave and unable to work or telework because he (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 is seeking medical diagnosis, the employee is entitled to two weeks of leave at his regular rate of pay up to $511 per day or $5,110 total.

If an employee is taking paid sick leave and is unable to work or telework because he is (1) caring for an individual who is quarantined as a result of a federal, state, or local quarantine or isolation order or under the advice of a health care provider, (2) caring for his child whose school or childcare is closed 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, the employee is entitled to two weeks of leave and compensation at 2/3 of his regular rate of pay, up to $200 per day or $2,000 over the two-week period.

An employee who is caring for a child whose school or childcare is closed due to COVID-19 related reasons is permitted to take paid sick leave for the first ten-day period, then paid family leave for the following ten weeks, and the employee will be paid at a rate of 2/3 of his regular rate of pay up to $200 per day or $12,000 for the twelve weeks (encompassing both the paid sick leave and family leave).

Employees taking leave are paid at their regular rate of pay, which is calculated based on the average regular rate over a period of up to six months prior to the date of leave.  Commissions, tips, and piece rates are incorporated into the regular rate.

The regulations clarify that employees are limited to the leave totals in the FFCRA for any combination of qualifying reasons.  Further, while the FFCRA provides for an expansion of the Family and Medical Leave Act (FMLA), the only type of family and medical leave that is paid under the FMLA is leave that qualifies under the FFCRA.

U.S. Department of Labor Issues Required Posters for the Families First Coronavirus Response Act

On March 25, 2020, the DOL issued posters relating to the FFCRA.  The DOL included one poster for private employers and a second poster aimed at federal employees.

The DOL issued accompanying frequently asked questions.  The note that each covered employer must post the notice in a conspicuous place on its premises.  An employer may satisfy this requirement by emailing or direct mailing this notice to employees or posting it on an employee information internal or external website.

All employers who are covered by the FFCRA, including small business owners, are required to post the notice.  If employees report to office headquarters then go to different worksite locations, the FAQs provide that it is not necessary to display the notice at different worksite locations as long as employees are able to see the poster at the main office.  Where employees report directly to different worksite locations or buildings and not to a main office building, though, the employer must post the notices in each building.

For further information about the FFCRA, its implementing regulations, or other issues arising out of the COVID-19 crisis, please contact Tricia O’Reilly at toreilly@walsh.law or (973)757-1104, M. Trevor Lyons at mlyons@walsh.law or (973)757-1014 and Caitlin Cascino at ccascino@walsh.law or (973)757-1024.