Employers Have Questions, the Department of Labor Has (Some) Answers: The DOL Provides its First Guidance Regarding the Families First Coronavirus Response Act

Late in the day on March 24, the DOL provided its first round of guidance regarding the Families First Coronavirus Response Act (FFCRA). While the guidance provides some clarity for employers, many important questions are left unanswered.

When can employees take advantage of the benefits of the FFCRA?

The FFCRA takes effect on April 1 and expires on December 31, 2020. Eligible employees of covered employers can take leave under the FFCRA at any point during that time period and not before. The DOL has stated that it will not bring enforcement actions for violations of the FFCRA until after April 17 provided the employer has made good faith efforts to comply.

What employers are covered?

The FFCRA applies to private employers with less than 500 employees and virtually all public sector employers at the state and local level.

The number of employees for private sector employers is measured at the time the leave is requested, therefore employers who have just over 500 employees should be aware that, if they are considering laying off employees, doing so could drop them below 500 and subject them to the FFCRA.

Employers with fewer than 50 employees may qualify for an exemption from the requirement to provide leave if doing so would put the viability of their business in jeopardy. The only guidance the DOL provides on how to take advantage of this exemption is an instruction to document why the business cannot provide the leave and to NOT provide any materials to the DOL. The DOL is expected to provide regulations clarifying this issue in April 2020. Businesses seeking to take advantage of this exemption should contact a Dykema Labor and Employment attorney to discuss their specific situation.

What are an employer’s obligations under the FFCRA?

• Provide all employees with two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay if the employee is quarantined or experiencing COVID-19 symptoms and seeking a medical diagnosis. This is capped at $511 per day and $5,110 in the aggregate over a two-week period. 

• Provide all employees with two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee needs to take care of a quarantined individual or a child whose school or childcare provider is closed or unavailable due to COVID-19. This is capped at $200 per day and $2,000 in the aggregate over a two-week period.
• Provide employees who have been employed for at least 30 days with 10 weeks of paid leave at two-thirds the employee’s regular rate of pay where the employee needs to care for a child whose school or child care provider is closed or unavailable due to COVID-19. This is also capped at $200 per day and $10,000 in the aggregate over a 10-week period. The first two weeks of this leave can be unpaid or the employee can use the paid sick leave days which may be available to cover those first two weeks.

Other Considerations

• The DOL notes that every dollar of required paid leave plus the cost of the employer’s health insurance premiums during the leave will be 100 percent covered by a refundable tax credit. This is only available to a private-sector employer, however.
• An employee is eligible for a total of 80 hours of paid sick leave under the new law, regardless of the covered reason for such leave. Therefore, if any employee takes 80 hours of paid sick leave to self-quarantine and later requests more paid sick leave for a different qualifying reason (i.e., they have a sick family member) the employee is not entitled to another 80 hours of paid leave.
• However, if an employer gave an employee leave for a qualifying reason prior to April 1, and that same employee requests paid sick leave for a qualifying reason after April 1, the employee is entitled to up to 80 hours of paid leave.

Posters/Notices

On March 25, the DOL published the posters which the FFCRA requires. These notices must be posted in a conspicuous place on the employer’s premises. Since many employer premises are currently closed, the DOL recommends posting the notice on an employer’s intranet, emailing it to employees, or mailing it to employees.

The family leave poster appears to contain a typo. The poster says the maximum aggregated cost of the 10 weeks of paid leave per employee is $12,000, but the statute caps this amount at $10,000. Hopefully, the DOL will issue a corrected notice soon.

Open Questions 

As with most things happening in society right now, there are many open questions still remaining about the FFCRA. The DOL is expected to issue regulations in April and may issue more guidance before then. Dykema will continue to update employers as guidance is released. In the meantime, employers are encouraged to contact a Dykema Labor and Employment Attorney or their Dykema relationship attorney with any specific questions. Stay safe.

If you have any questions about the information in this alert, please contact Robert Boonin (313-568-6707 or rboonin@dykema.com) or your Dykema relationship attorney.

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