Answering Your Questions on the Federal Families First Coronavirus Response Act and Required Posting

By Janet Strevel Hayes

It has been a busy week for employers struggling to grasp the requirements of the new Families First Coronavirus Response Act (“FFCRA”). Within the last few days, the U.S. Department of Labor Wage & Hour Division (“WHD”) released a series of guidances and issued the mandatory posting that employers must make under the FFCRA. (Click here to access the required poster.) Below, we tackle some of employers’ most frequently asked questions:

1. Where do I post the notice? If employees are teleworking, how do I post the notice to them?  

Employers must post the notice in a “conspicuous place.” It must be on a wall accessible to employees. The poster cannot be put in a notebook with other postings and the notebook hung up for employees to view.  The posting mandate can be satisfied for telework employees by sending the notice to employees via e-mail or direct mail or by posting the notice on the employer’s intranet or external website.  

2. What is the effective date for the FFCRA?

Under the original terms of the FFCRA, the effective date was to be some time on or before April 2, 2020. The WHD’s guidance provides the effective date will be April 1, 2020. The law will apply to leave taken between April 1, 2020, and December 30, 2020, and is not retroactive.  

3. If the employer granted an employee paid leave prior to the effective date of the law, will it count toward the FFCRA requirement?

No. Any paid leave granted prior to the effective date, even for a covered reason under the law, does not reduce the amount of leave otherwise available under the FFCRA. Likewise, an employer should not expect reimbursement for paid leave given prior to April 1, 2020.  

4. Should the employer count temporary employees when calculating the number of employees for the 500-employee threshold?

Yes. The WHD guidance states that employees on leave, temporary employees jointly employed by the employer and another employer, and day laborers supplied by a temporary agency should all be counted to determine the total number of employees for purposes of FFCRA coverage. Independent contractors (as defined under the Fair Labor Standards Act) should not be counted toward the total.  
5. I am a small business and will be jeopardized by the Act. Can I go ahead and apply to the Department of Labor for an exemption?

Not yet. Under the FFCRA, small businesses with fewer than 50 employees may qualify for an exemption from the paid leave requirements if meeting the exemption would jeopardize the viability of the business. The Department of Labor, however, has not yet specified the exact criteria necessary to meet the small business exemption. It is expected to be included in forthcoming regulations. Small businesses wishing to elect the exemption will have to document why their businesses meets the criteria that will be established by the Department of Labor. We will provide more information on the exemption when it is received. 

6. How do I calculate the rate of pay for part-time employees and employees with varying schedules?

Under both FMLA Expansion and the Emergency Sick Leave provisions of the FFCRA, employers make pay calculations based on the employee’s “regular rate of pay.” As a general matter, that includes commissions and tips. For part-time employees, the regular rate of pay is calculated based on the average number of hours the employee would be regularly scheduled to work in a two-week period. The WHD guidance clarifies that if a full-time or part-time employee’s schedule varies, the employer may use a six-month average to calculate the average daily hours. If the employee has not been employed for six-months, the employer may use the number of hours agreed upon when the employee was hired or, if there was no such agreement, the employer may use the number of hours per day the employee has been scheduled to work over the entire term of their employment. 

The Department of Labor has stated that additional guidance and regulations on the FFCRA are forthcoming. We also expect imminent passage of another stimulus bill. We will continue to monitor and provide updates as further guidance and regulations are released. 

7. What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?

You must require your employee to provide you with appropriate documentation and support of the reason for leave, including: 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 healthcare provider who has advised the employee to self-quarantine. Retain these records as you may need them to complete any Internal Revenue Service (IRS) forms that may be required to substantiate your claim for a tax credit. If an employee is taking expanded family medical leave to care for a child whose school or place of care is closed or childcare provider is unavailable, due to COVID-19, under the Emergency Family and Medical Leave Expansion Act, you must require your employee to provide you with the appropriate documentation of such leave, just as you would for conventional FMLA requests. This could be as simple as a notice that has been posted on a government, school or daycare website.  

8. If the business closed the worksite before April 1, 2020 (the effective date of the FFCRA), is the business required to provide paid sick leave or expanded family and medical leave under the FFCRA?

No. If the employer does not have work, the employee will not get paid sick leave or expanded family and medical leave. However, the employee may be eligible for unemployment insurance benefits. This is true when the employer closes the worksite for lack of business or because it is required to close pursuant to a Federal, State or local directive.  

9. If the business closes the worksite on or after April 1, 2020 (the effective date of the FFCRA), but before an employee goes out on leave, can the employee still get paid sick leave and/or expanded family and medical leave?

No. If the employer closes after the FFCRA’s effective date (even if employee’s leave was requested prior to the closure), the employee will not get paid sick leave or expanded family and medical leave. However, the employee may be eligible for unemployment insurance benefits. This is true whether the employer closes for lack of business or because it was required to close pursuant to a Federal, State or local directive. 

10. If I have to reduce an employee’s scheduled work hours, is the employee entitled to sick or expanded family and medical leave for the hours he/she is no longer scheduled to work?

No. If the employer reduces work hours because it does not have work for the employee to perform, the employee may not use paid sick leave or expanded family and medical leave for the hours he/she is no longer scheduled to work. This is because the employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19. (The employee may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents the employee from working his or her full schedule).  

We will continue to update you as new information becomes available. In the meantime, please contact us with additional questions. While we are practicing social distancing, we continue to provide full legal services and are prepared to assist our clients as needs arise. Stay safe.

Janet Hayes , a Shareholder in the Knoxville office, is an advocate for employers and businesses across the state. Her practice focuses on employment and appellate law.

Ms. Hayes has successfully defended all types of employment claims including sexual harassment, retaliatory discharge, discrimination, workers’ compensation, invasion of privacy, wage/hour claims, and denial of benefits. She has also argued multiple issues in each of Tennessee’s appellate courts, including the Supreme Court of Tennessee. She has argued federal appeals in the United States Court of Appeals for the Sixth Circuit.

With over 20 years of litigation experience, Ms. Hayes now devotes most of her time to developing litigation-avoidance strategies for her clients. She drafts client-specific employee handbooks, policies, and employment contracts to provide legal compliance while enhancing business success. She also conducts manager/supervisor training classes and compliance audits. Employers frequently call upon Ms. Hayes to conduct formal investigations of employee complaints and allegations of internal wrongdoing. Her investigations have included allegations of sexual harassment, age discrimination, embezzlement, misappropriation of time, abuse of leave policies, and generalized claims of mismanagement and unprofessional conduct.