The Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act become effective on April 1, 2020.
On March 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued initial guidance on the Families First Coronavirus Response Act (FFCRA), which was signed into law on March 18, 2020. (For more information, see our prior Alert on the requirements of FFCRA.) The WHD’s guidance indicates that regulations are also forthcoming in April, but these regulations likely will not be issued before FFCRA takes effect.
FFCRA Goes into Effect April 1, 2020
The WHD’s guidance is in the form of three separate documents: a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers document. The guidance clarifies that FFCRA applies to employee leave taken between April 1, 2020 (not April 2, 2020) and December 31, 2020. The WHD’s guidance also makes clear that FFCRA does not address employee leave taken prior to April 1, 2020, providing:
- Employers cannot deny employee paid sick leave under the FFCRA, even if the employer already provided paid leave prior to April 1, 2020; and
- Paid FMLA and sick leave benefits are not retroactive (meaning FFCRA’s benefits will not be applied to employee absences or additional paid leave benefits provided by an employer prior to April 1, 2020).
FFCRA Will Not Be Enforced Until April 17, 2020
On March 25, 2020, the WHD also separately issued a Field Assistance Bulletin, indicating that it will not bring enforcement actions against any employer through April 17, 2020, so long as employers make reasonable, good faith efforts to comply with FFCRA. An employer makes reasonable, good faith efforts when it: (1) remedies any violations, including by making affected employees whole as soon as practicable; (2) does not have willful violations (i.e., the employer did not know or show reckless disregard for whether its conduct was prohibited); and (3) provides written commitment to comply with FFCRA in the future.
Employers Should Be Creative with “Posting” Requirements Given the Remote Workforce
On March 25, 2020, the WHD also released the notice that each covered employer must post in a conspicuous place on its premises the requirements of FFCRA. Given that most employees are working remotely, employers should comply with this requirement by emailing or direct mailing the notice to employees, or by posting it in a prominent place on an employee website.
FFCRA Does Not Apply to Employers with More Than 500 Employees
To aid in compliance, the WHD’s guidance provides the following insight on how to count employees, allowing employers to more easily determine whether they are under or over the 500-employee threshold:
- All full-time and part-time employees within the United States, the District of Columbia or any territory or possession of the United States should be included;
- Any employees on leave, temporary employees who are jointly employed and day laborers supplied by a temporary agency should also be counted;
- Generally, two or more legal entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 for the family leave provisions; the issue remains unclear with respect to the paid sick leave provisions pending the DOL’s issuance of its regulations; and
- Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they qualify as joint employers under the Fair Labor Standards Act.
What This Means for Employers
The Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act become effective on April 1, 2020. This means that employers should be prepared to comply by (1) determining whether the law applies to their workforce; (2) if it does, notifying employees and training human resources staff on compliance; and (3) staying up to date with further legal developments. While this guidance is helpful, employers should watch for additional guidance and the official federal regulations because there are still open questions:
- Whether local, state or federal “stay at home” or “business closure” orders could, under any circumstances, be considered “quarantine” or “isolation” orders allowing an employee to qualify for benefits under the paid sick leave law in any circumstance, although it does not appear to be the case under the orders issued to date;
- Application of the integrated employer test to the paid sick leave provisions;
- Whether FFCRA leave may be used intermittently; and
- How employers with fewer than 50 employees will effectively demonstrate that compliance will jeopardize the viability of their business. (Note: The Department of Labor has already indicated that it will be issuing criteria on this point.)
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.