Management Update

COVID-19 Employment Law Round-Up

FFCRA Employment Provisions : The Families First Coronavirus Response Act (“FFCRA”) becomes effective April 1, 2020. In general, the new legislation affords paid time off for employees in certain circumstances arising from the impacts of COVID-19. Generally speaking, the Emergency Family and Medical Leave Expansion Act (“EFML”) allows up to twelve weeks of leave (ten weeks paid at two-thirds of the employee’s regular pay rate) where an employee is unable to work or telework due to the need to care for a child under eighteen years old because the child’s school is closed or the [regularly paid] child care provider is unavailable due to the COVID-19 public health emergency. The Emergency Paid Sick Leave Act (“EPSL”) provides up to 80 hours of paid leave to full time employees (full pay or two-thirds of the regular rate depending on the reason leave is taken) for several enumerated reasons related to the pandemic. With respect to healthcare industry employers in particular, there are several open issues regarding the FFRCA provisions. Click here to read the full article.

DOL Issues Second Set Of FAQs; And The News Is Mostly Good For Employers

Yesterday, the DOL issued a second set of FAQs related to the Families First Coronavirus Response Act (FFCRA). You can find the FAQs here. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

These are the highpoints:

Documenting Leave:

Employees must support leave requests with the appropriate information, including the employee’s name, qualifying reason for leave, a statement that the employee is unable to work or telework for that reason, and leave date(s).
Employees must provide documentation supporting the absence, for example, written documentation from a health care provider advising self-quarantine, a notice posted on a government, school, or daycare website, or an email from an employee or official of the school, place of care, or child care provider. As you can see, the standard will be fairly low.

Click here to read the full article.

Department of Labor Guidance on the Families First Coronavirus Response Act

The Department of Labor, Wage and Hour Division, has issued guidance explaining the Families First Coronavirus Response Act provisions and discussing how the Division will enforce the Ac t. This update addresses the major clarifications that the Guidance provides. The Division’s news release also clarifies that the effective date of the Act is now April 1, 2020, rather than April 2nd as previously considered based on the language of the Act itself. However, there is a 30-day grace period during which the Department will not enforce the Act. The Department of Labor has also issued notices that employers can use to satisfy their obligation to notify employees of their rights to expanded leave under the Act, one for Federal employees and one for all other employees. Click here to read the full article.

U.S. Department of Labor Issues COVID-19 Question and Answers

The U.S. Department of Labor has just provided us with a Q & A sheet regarding the Families First Coronavirus Response Act here. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

This document does not answer all of our questions, but it does provide us with some useful guidance. These are what we think are the most useful bits:

The FFCRA’s paid leave provisions are effective on April 1, 2020, not April 2 as we expected.
The DOL is to set guidance for an exemption to the emergency FMLA leave (12 weeks) for businesses with less than 50 employees where providing the leave would jeopardize the viability of the business as a going concern. The DOL has instructed small businesses to document the reason that providing the leave would jeopardize the business as a going concern for now, and indicated that additional guidance would be forthcoming.
We calculate the number of employees at the time that the employee takes leave.
We are to include the following as employees: employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only you’re or another employer’s payroll); day laborers supplied by a temporary agency.
We do NOT include independent contractors under the Fair Labor Standards Act (FLSA).
The Q&A sheet provides some guidance on how to cumulate the employees of two related entities for purposes of determining the 500-employee threshold.
When calculating pay due to employees under the emergency paid leave provision (80 hours or 2-week average), we should include overtime hours worked. For example, an employee who is scheduled to work 55 hours a week may take 55 hours of paid sick leave in the first week, but would only be allowed 25 hours in the second week, and no more than 80 hours total.
While the overtime hours are included, the pay rate does not need to include premium overtime pay.
Paid emergency sick leave (80 hours) and expanded FMLA (12 weeks) run concurrently and are NOT retroactive. You will not be able to count any leave allowed before April 1 against your obligations to provide paid leave under the FFCRA.
The “regular rate of pay” used to calculate leave pay is the average of an employee’s regular rate over a period of up to six months prior to the date on which the leave is taken. If an employer recently cut pay or placed employees on unpaid leave, the employer must look back at the employee’s total compensation for the last six months and divide it by all hours actually worked to determine the regular rate of pay.

DOL News Release on the FFCRA Leave Laws- Tax Credits & Enforcement

The Department of Labor issued a news release Friday, March 20th, shedding a little more light on how the tax credits will work. While this release is not a law or regulation, it sheds light on how the Department of Labor will likely address the issues listed. The key takeaways from the DOL news release are below:

The DOL says that an employer issuing paid leave under the Act can retain the payroll taxes normally deducted and deposited with the IRS equal to the amount of qualifying leave paid under the Act. If the payroll taxes are less than the leave paid, the employer can request an accelerated payment from the IRS. There will be more to come this week. The news release claims that the reimbursement will be “quick and easy” to obtain. It also provides examples for how the tax credit would work.
The DOL will have a non-enforcement period for reasonable, good faith compliance efforts for 30 days after the April 2nd effective date.

For the full news release please click here.

Families First Coronavirus Response Act Summary--Employer Provisions

This article summarizes the Families First Coronavirus Response Act (H.R. 6201) (“the Act”), which was enacted March 18, 2020. The Act becomes effective 15 days after enactment, or Thursday, April 1, 2020. The Act in its current iteration will cease to be enforceable on December 31, 2020.

The Act provides two changes to employee leave: (1) 2 weeks of paid leave for specific COVID-19-related reasons and (2) changes to the Family and Medical Leave Act (“FMLA”) to expand an employee’s right to take leave, and an employer’s obligation to provide paid leave, to an employee for child care closures due to COVID-19. The Act also provides a tax credit to employers based on the paid leave that they were required to issue to their employees. This article will explain the Act’s key employment provisions, provide practical insight for employers applying the Act, and how the Act will likely affect other laws already in place. Click here to read the full article.

Get Familiar With OSHA'S Guidance on Preparing Workplaces for COVID-19

OSHA released it updated Guidance, Preparing Workplaces for COVID-19 last week. ( https://www.osha.gov/Publications/OSHA3990.pdf ). The Guidance does not create new legal obligations for employers but, rather provides practical advice on measures we can take to limit the risk of exposure and infection for our employees and how to respond if an employee does become ill.

The Guidance identifies a range of levels of risk exposure: Very High – for those employees with a high potential for exposure, such as doctors or healthcare personnel who have direct contact with COVID-19 patients – to Lower Exposure Risk – workplaces which do not involve frequent contact with the public or COVID-19 patients. For each level of risk exposure, the Guidance details the steps we can implement to best manage the risk of exposure.

As a starting point, OSHA recommends that all employers develop an infectious disease preparedness and response plan that complies with the latest Guidance. This will include encouraging employees to use proper hygiene practices and encouraging (requiring) sick employees to remain at home.

The Guidance is not the law or mandatory, but it is a useful tool to use in navigating through this pandemic.