April 03, 2020 Update on the Federal Families First Coronavirus Response Act
KEEPING YOU INFORMED…
We are writing to provide you with additional information regarding recently-issued guidance from the U.S. Department of Labor (“DOL”) regarding the implementation of the new federal Families First Coronavirus Response Act (the “FFCRA”) (which includes both the Emergency Family and Medical Leave Expansion Act (“Emergency FMLA”) and the Emergency Paid Sick Leave Act (“the EPSLA”)), respectively. For more information about these laws, an updated version of our March 25, 2020 memo is attached.
Effective Date: The Emergency FMLA and the ESPLA are not retroactive (i.e., the benefits provided in accordance with these laws must be provided beginning on or after April 1, 2020 for eligible employees who are on/commencing a leave for a qualifying reason at that time). However, an employer must comply with the requirements of the Emergency FMLA and the ESPLA even if it previously provided other COVID-19-related leave to the employee.
Notice Posting: The DOL has made an electronic copy of the required Notice for employers covered by the EPSLA and the Emergency FMLA available for download: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.
♦ Where to Post the Notice: Each covered employer must conspicuously post a copy of the Notice on its premises, in a place(s) that is available to all employees. Given that many employer workforces are currently telecommuting, the FAQs state that the employer may e-mail or physically mail the Notice to all employees, or post it on an “employee information internal or external website” (which we have interpreted to mean the employer’s website or intranet page(s) that are available to all employees). We recommend that an “e-posting” be done in addition to a physical posting, where practicable.
For physical postings, we recommend that employers post the Notice where they post their other federally-mandated notice postings (e.g., in an employee break room; staff room; etc.). If an employer’s premises consists of multiple buildings, the Notice must be conspicuously posted in each building, unless all employees must report to one main building (where the Notice is conspicuously posted) each day before going to the other building(s).
♦ English-Only Notice Required at This Time: At this time, the Notice does not need to be provided in any language other than English, but this requirement may be expanded to include other languages once those Notices have been prepared.
Public Sector Employer Coverage: Unlike private sector employers, to whom the Emergency FMLA and the ESPLA only apply if they have fewer than 500 employees, most public employers are covered by both the Emergency FMLA and the ESPLA regardless of the number employees they employ.
Specifically, any public agency that is covered by the traditional FMLA is also covered by the Emergency FMLA. This includes, among other public employers, counties, cities, towns, villages and school districts.
Similarly, the EPSLA covers public employers including, but not limited to, counties, cities, towns, villages, school districts, other public agencies, “or any other entity that is not a private entity or individual” as long as it employs one or more employees.
500-Employee Threshold for Private Employers: The Emergency FMLA and EPSLA cover private employers if they employ fewer than 500 employees. For purposes of determining whether an employer is under the 500-employee threshold, full and part-time employees count, as do jointly-employed employees, employees on leave, certain temporary employees and certain day laborers. Workers who are independent contractors, however, do not count.
Private Employers With Fewer Than 50 Employees: A small business may deny leave because the employee’s child’s school/place of care is closed or child care provider is unavailable, due to COVID-19 related reasons, if it employs fewer than 50 employees, and if “an authorized officer of the business” has determined that:
- The provision of Emergency FMLA or EPSLA leave “would result in the small business’ expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;”
- The absence of the employee(s) requesting Emergency FMLA or EPSLA leave “would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities;” or
- “There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services” provided by the employee(s) requesting Emergency FMLA or EPSLA leave, and “these labor or services are needed for the small business to operate at a minimal capacity.”
Exception for Health Care Providers and Emergency Responders: Employers are not required to provide Emergency FMLA or EPSLA leave to health care providers and emergency responders “on a case-by-case basis.” The DOL has not yet provided any additional guidance concerning the meaning of the phrase “on a case-by-case basis.” Though not stated in the guidance, employers deciding on requests should keep in mind that their decisions should be made in a non-discriminatory manner and should not result in a disparate impact on a group(s) of employees.
The definition of a “health care provider” includes:
♦ Anyone employed at “any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity;”
♦ Anyone employed by “any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments;” and
♦ Anyone the Governor determines is a health care provider necessary for the State’s response to COVID-19.
The definition of an “emergency responder” includes:
♦ “An employee who is necessary for the provision of transport, care, health care, comfort, and nutrition” of patients, or “whose services are otherwise needed to limit the spread of COVID-19” including, but not limited to, law enforcement officers, correctional institution personnel, firefighters, emergency medical services personnel, and 911 operators; and
♦ Anyone the Governor determines is an emergency responder necessary for the State’s response to COVID-19.
Overtime: The Emergency FMLA requires employers to pay employees for hours they would normally have been scheduled to work, even if that is more than 40 hours in a week. Conversely, the EPSLA requires that sick leave be paid only up to 80 hours over a two week period (for full-time employees; or the average hours the employee would have worked over a two-week period for part-time employees). The pay does not need to be split evenly between the two weeks; it is based on time the employee was scheduled to work. However:
♦ Employers should be mindful of the daily and aggregate caps on pay set out in the Emergency FMLA and the ESPLA; and
♦ The Q&A states that “pay does not need to include a premium for overtime hours.”
Calculating an Employee’s “Regular Rate of Pay”: The “regular rate of pay” is the average of the employee’s regular pay rate over a period of up to six months prior to taking leave in accordance with the EPSLA or Emergency FMLA. If the employee has not yet worked for the employer for a full six months, the rate is calculated based on the average of the employee’s regular rate of pay for each week that the employee has worked for the employer.
Multiple Qualifying Reasons: The total number of hours for which full-time employees may receive paid sick leave pursuant to the EPSLA is capped at 80 hours (or, for part-time employees, the number of hours the employees works, on average, over a two week period). Employees may use this allotment for any combination of qualifying reasons, but are not entitled to a new allotment for each qualifying reason.
Interaction Between Emergency FMLA and the EPSLA: An employee who is home with his/her child because the child’s school or place of care is closed, or child care provider is unavailable, would receive paid leave pursuant to the EPSLA and the Emergency FMLA, but only for a total of up to 12 weeks of job-protected paid leave. The EPSLA would cover the first two weeks and the Emergency FMLA would cover the remaining 10 weeks (provided that the employee was unable, or not permitted, to telework).
Previous/Future Use of Traditional FMLA: Employees may use paid leave pursuant to the EPSLA regardless of how much leave they have already taken pursuant to the traditional FMLA. However, employees may only take a total of 12 combined workweeks for traditional FMLA or Emergency FMLA reasons during a 12-month period.
Unable to Work: A person is deemed to be “unable to work” if his/her employer has work for him/her and one of the COVID-19 qualifying reasons set forth in the EPSLA or Emergency FMLA prevents him/her from being able to perform that work, either in-person or via telework. If an employee is teleworking and subsequently becomes unable to do so for a qualifying reason, the employee is entitled to the benefits of the EPSLA and the Emergency FMLA.
♦ Employees Who Telework: If the employee is teleworking, but is unable to work his/her normal schedule of hours due to an EPSLA or Emergency FMLA qualifying reason, he/she may take intermittent leave, but only if the employer allows it. In these situations, intermittent leave can be taken in any mutually agreed-upon increment.
♦ Employees Who Physically Report to Work: With the exception of childcare-related leaves, if the employee continues to physically report to work, he/she must take leave pursuant to the EPSLA or Emergency FMLA in full day increments and may not take leave intermittently. In the case of childcare-related leaves, the employee may take intermittent leave, but only if the employer allows it.
For employers with unionized employees, whether to allow an employee to take intermittent leave is discretionary and will, therefore, likely need to be negotiated prior to implementation.
Closings, Furloughs and Reduced Hours: If an employer closes a worksite after April 1, 2020, any employees who are on an EPSLA or Emergency FMLA leave at the time of the closure are entitled to be paid for the leave time prior to the closing.
If an employer closed a worksite prior to April 1, 2020, any employees that the employer sent home and stopped paying are not eligible for benefits pursuant to the FFCRA, but may be eligible for unemployment insurance benefits. This is true whether the employer closed the worksite for lack of business or because it is required to do so pursuant to a federal, State or local directive.
Employees on furlough are not entitled to take EPSLA or Emergency FMLA leave.
An employee may use EPSLA or Emergency FMLA if a qualifying reason prevents the employee from working his/her full schedule. Note, however, that a reduction in work hours due to lack of work is not a qualifying reason.
Health Insurance: As with traditional FMLA, an employee’s health insurance coverage continues during EPSLA or Emergency FMLA leave on the same terms as if the employee continued to work.
Job Restoration: In most instances, upon return from leave pursuant to the EPSLA or Emergency FMLA, employers are required to return employees to the same or an equivalent position. This does not prevent the employer from taking actions, such as layoffs, that it would have otherwise taken had the employee not taken leave (employers will have the burden of proving this to be the case). There is a limited exception for employers who employ fewer than 25 employees.
Paid Leave Provided by the Employer: Paid sick leave pursuant to the EPSLA is in addition to any other employer-provided leave entitlements an employee has (e.g., vacation, personal or sick leave). An employer may not require employees to use their accruals before, or concurrently with, the EPSLA leave. If both the employer and the employee agree, however, employees may use their accruals to supplement the amount they receive during the EPSLA leave (which is otherwise capped), up to the employee’s normal earnings.
During the first two weeks of unpaid Emergency FMLA leave, an employer may (but is not required) to allow its employees to supplement any amount they receive pursuant to the EPSLA with their leave accruals in order to receive full pay. Employees may also, instead, elect to use accrued leave during those first two weeks.
After the first two weeks, an employee may elect, or the employer may require, that the employee use his/her accruals concurrently with Emergency FMLA leave. In this case, while using accruals, the employee would receive his/her full regular pay.
Enforcement Delay for Non-Willful Violations: The DOL recently published Field Assistance Bulletin No. 2020-1 (“Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act (FFCRA)”) which, in sum and substance, provides that the DOL will not bring enforcement actions against any public or private employer for non-willful violations through April 17, 2020, provided that the employer has made “reasonable, good faith efforts” to comply with the EPSLA or Emergency FMLA. Employers are deemed to have acted “reasonably” and “in good faith” when:
- “The employer remedies any violations, including by making all affected employees whole as soon as possible;” and
- The violations were not willful; and
- The DOL receives a written commitment from the employer to prospectively comply with the EPSLA or Emergency FMLA leave.
The DOL reserves the right to enforce the law for employers who do not satisfy ## 1-3 above.
Other Relevant Resources: Current links to other available relevant resources provided by the DOL include:
♦ “Families First Coronavirus Response Act: Employee Paid Leave Rights”: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave.
♦ “Families First Coronavirus Response Act: Employer Paid Leave Requirements”: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.
♦ “COVID-19 and the Fair Labor Standards Act Questions and Answers”: https://www.dol.gov/agencies/whd/flsa/pandemic.
♦ “COVID-19 and the Family and Medical Leave Act Questions and Answers”: https://www.dol.gov/agencies/whd/fmla/pandemic
The Department of Labor continues to update the Q&A and, subsequent to the preparation of this memorandum, released new regulations.
Please contact Alyssa L. Zuckerman, Adam S. Ross or one of our other attorneys by calling (631) 694-2300 if you have any questions regarding the contents of this memorandum or other issues that may arise as a result of this new legislation.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2020
 Much of this information comes from the “Families First Coronavirus Response Act: Questions and Answers” (“the Q&A”) and the “Families First Coronavirus Response Act Notice – Frequently Asked Questions” (“the FAQ”). This is not an exhaustive listing of everything in the Q&A and FAQ. The entire Q&A is available at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. The entire FAQ is available at https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions. While the Q&A and the FAQ are not formal regulations, and subsequent regulations or court decisions could be different, the views of the DOL are an important guide to how it currently intends to enforce the law.
 If the employer’s premises has multiple floors and does not have one place where all employees can regularly see the Notice, then the guidance recommends that the Notice (as well as any other federally-mandated notice) be placed in a location on each floor where the employees can easily see it.
 The term “public agencies” is defined in the Fair Labor Standards Act. In addition, private schools are also covered by the Emergency FMLA in the same manner as public schools. If you are unsure whether you are covered, please contact us for assistance. The Q&A states that additional information for public sector employers is forthcoming.
 The guidance does not state whether this includes any employees outside of the U.S.
 Two or more employers that meet the FMLA’s “integrated employer test” may have to count all of the employees of all of the entities. If this may apply to you, contact us for further assistance.
 This also includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to these institutions. Also included is any individual employed by an entity that contracts with any of these institutions, employers, or entities to provide services or to maintain the operation of the facility.
 This also includes, but is not limited to, military or national guard, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, public works personnel and people “with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.”
 For calculating the number of paid leave hours for a part-time employee with a variable schedule, please see our updated March 25, 2020 memorandum.
 Unless the regular pay rate is less than the federal/State/local minimum wage, in which case the greatest rate applies.
 Commissions, tips and piece rates must be incorporated into the “regular pay rate” calculation to the same extent as they are pursuant to the FLSA. An employer “can also compute this amount for each employee 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.”
 For example, an employee may take paid leave on Mondays, Wednesdays and Fridays to care for his/her child, but work at the employer’s normal worksite on Tuesdays and Thursdays.
 See page “7” of our March 25, 2020 memorandum.
 A violation will be deemed to be “willful” when the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited.”