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DOL Issues New FFCRA Regulations

03/31/2020

In an important development for employers, the U.S. Department of Labor (DOL) has begun to steadily issue regulations which provide further compliance information for the Families First Coronavirus Response Act (FFCRA) in workplaces. The Act is effective April 1, 2020.

We are providing the following highlights of the DOL regulations. Not all the new regulations are covered in this article. Additional information can be obtained from any of the attorney members of the Heyl Royster Employment Law Practice group listed below.

Required Notice

Each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises, and may satisfy this requirement by emailing or direct mailing this notice to employees, or place it on an internal or external employee information website. Here is link to the FFCRA poster and additional information. Click Here

DOL Enforcement

In its new guidelines, the DOL explained that it will not bring any enforcement actions against employers making reasonable, good faith efforts to comply with the FFCRA through April 17, 2020. Employers attempting to implement the new requirements under the FFCRA will accordingly have some additional time to come into compliance without penalty so long as they are making these reasonable, good faith efforts.

FFCRA Overview

The FFCRA enacts the Emergency Paid Sick Leave Act (EPSLA), establishing a new “Emergency Paid Sick Leave.” This emergency paid sick leave provides up to two weeks of fully paid leave to employees who are unable to work or telework for one of six COVID-19 related reasons. The FFCRA also amends the Family Medical Leave Act (FMLA) to include up to twelve weeks of partially paid leave for employees who cannot work or telework because they must care for their children because the child’s school or childcare facility is closed because of a COVID-19 related reason. 

The FFCRA also provides a tax credit from the federal government for employers to cover the full cost of these leaves provided to their employees. 

Possible exemption for employers with less than 50 employees

Generally, the FFCRA only applies to private and certain public sector employees with less than 500 employees “at the time your employee’s leave is to be taken.” However, a business with less than 50 employees may be exempt from the FFCRA if compliance with the FFCRA would “jeopardize the viability of the small business as a going concern.” The DOL identifies three circumstances that would satisfy that requirement:

  • Providing paid sick leave or emergency FMLA leave would result in expenses and financial obligations exceeding available business revenues, and would cause the business to cease operating at a minimal capacity;
  • The absence of an employee or employees on leave would entail a substantial risk of a similar effect of expenses and financial obligations exceeding revenues; or
  • Providing leave would result in insufficient available workers to keep the business operating at a minimal capacity.

The DOL has stated that a small business may claim the exemption where an authorized officer has concluded that the business meets the above requirements. Also, this small business exemption only applies to paid leave when an employee is unable to work or telework to care for a child due to closure of a school or child care facility for COVD-19 reasons.

Computation of FFCRA leave

The FFCRA imposes a new set of leave requirements including the Emergency Family and Medical Leave Act (EFMLA). However, “regular” FMLA leave provided prior to April 1, even for COVID-19 reasons, does not reduce the employer’s new emergency sick paid leave obligations under the EPSLA.

But, traditional FMLA leave already taken in the 12-month period used by the employer for calculating FMLA leave does reduce the amount of public health emergency leave available under the EFMLA. For example, an employee who has taken three weeks of FMLA leave during the relevant 12-month period would only be eligible to take nine weeks of public health emergency leave, and an employee who has already taken twelve weeks of FMLA leave may not take any additional leave under the EFMLA.

Required FFCRA documentation

Employers will need to retain information which they will use to seek tax credits in the future.

For emergency paid sick leave, employers must require their employees to provide the following information supporting their leave: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or the name of the health care provider who has advised the employee to self-quarantine. This documentation may include, for example, a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19.

Important Compliance Guideline   

It is important to note that this is a rapidly-changing environment and all employers ought to pay close attention to, and follow, any new directives or mandatory instructions from federal, state or local authorities.

For further assistance with your implementation of the Families First Coronavirus Response Act, contact any of the following Heyl Royster employment attorneys: