Implementing the Families First Coronavirus Response Act: Department of Labor Provides Updated Guidance

Implementing the Families First Coronavirus Response Act: Department of Labor Provides Updated Guidance

Following the enactment of the FFCRA on March 18, 2020, employers and employees alike had many questions regarding the Act’s implementation and are left to move forward with uncertainty. However, the Department of Labor (“DOL”) has provided new questions and answers to provide much needed clarity to all those struggling to ensure compliance with the new Emergency Family and Medical Leave Expansion Act (“E-FMLA”) and The Emergency Paid Sick Leave Act (“E-PSLA”).

Over the past week, the DOL has issued written guidance in the form of a published set of FAQ’s on its website found here, as well as facts sheets and a new required workplace poster. The DOL has already updated and expanded its written guidance several times, and readily admits that such guidance will continue to be issued on a rolling basis. Also, the DOL has indicated it intends to promulgate further regulations on an unspecified date in April 2020.

Interpretation and implementation of the FFCRA is changing quickly. But to date this is what we know based on the guidance provided by the DOL:

New Effective Date – A considerable curveball, the DOL announced that the FFCRA is going to become effective a day early on April 1, 2020.

Benefits Will Not Apply Retroactively – The DOL clarified that FFCRA benefits are not retroactive. As a result, any paid leave given to employees before the effective date of the FFCRA (April 1, 2020), which would have otherwise qualified for either E-FMLA and E-PSLA benefits, will not be counted to towards the FFCRA’s leave requirement. However, employees are entitled to their full entitled of FFCRA leave on April 1, 2020, and beyond.

Workplace Poster The DOL has issued the notice poster employers must use to educate employees on the new leave opportunities and requirements. Employers can satisfy their notice obligations under the FFCRA by: (1) posting the notice in a conspicuous location in the workplace; (2) directly emailing or mailing the requisite notice to each individual employee; and (3) posting the notice on an employee information internal or external website.

Employers should have the poster up by April 1. The DOL recognized employers are still grappling with the FFRCA going into effect and plans to give a 30-day grace period for enforcement. Employers are not required to issue notices to recently laid-off employees. However, notice should still be provided to furloughed employees, even though they are not entitled to paid leave under the law. Copies of the required notice and the DOL’s guidance concerning notice are available here and here.

Small Business Exemptions – The most needed point of clarity pertains to the possibility of small business exemptions from the E-FMLA and E-PSLA. Under the FFCRA, the Secretary of Labor reserved the authority to issue regulations exempting small businesses with fewer than 50 employees when the imposition of the Act’s requirements would jeopardize the viability of the business as a going concern. Unfortunately, the DOL has not issued any further elaboration on the implementation or requirements of these exemption provisions. The DOL simply advised small businesses should “document” why the E-FMLA and E-PSLA provisions of the FFCRA “jeopardize the viability” of your business. However, the DOL promised that forthcoming regulations will address this is in more detail.

Large Employers (500 or more employee) – The DOL clarified that the number of employees should be calculated “at the time your employee’s leave is to be taken.” This could greatly impact the 500-employee threshold outlined in the FFCRA. Based on this language, the DOL is requiring employers to determine whether it has 500 employees at the time any individual employee takes leave under the FFCRA. As a result, the 500-employee threshold to qualify as a large employer is a moving target. For businesses hovering around 500 employees, this could have substantial implications for businesses contemplating layoffs before and after the April 1 effective date. If the contemplated layoffs would bring the overall number of employees under 500, then FFRCA coverage would be triggered.

Moreover, the DOL also issued detailed guidance on how to calculate the number of employees when multiple entities exist under the same corporate family, and in situations where multiple entities may constitute “joint employers” or “integrated employers.”

Documentation and Certification Requirements – The DOL clarified that employers must require employees to provide appropriate documentation and written notice supporting the reason for their leave in order for the employer to claim a payroll tax credit for FFCRA leave payments. The appropriate notice should include:

  • the employee’s name;
  • the qualifying reason for requesting leave;
  • a statement that the employee is unable to work for that reason; and
  • the date(s) for which leave is requested

Documentation of the reason for leave is also necessary. This includes the source of any quarantine or isolation order, the name of the health care providers who advised the employee to self-quarantine, or notice of a school disclosure or lack of child care. Importantly, unlike traditional FMLA leave, no signed third-party certification is required for FFCRA paid leave.

Employers should retain all documentation and create written policies advising their employees of the documentation required to receive benefits. Employers who grant their employees paid leave under the FFCRA without keeping such documentation will not be eligible for a payroll tax credit.

Layoffs, Worksite Closures, and Furloughs – The DOL explained that if an employer closed its worksite before or after the April 1st effective date, but prior to the employee requesting leave under the FFCRA, the employee is not entitled to leave under the FFCRA. Additionally, if an employer closes its worksite during a time when an employee is on leave pursuant to the FFCRA, employee is no longer eligible for FFCRA benefits.

In the case of a furlough, an employee will not be entitled to leave under the FFCRA, even if the employer remains in operation. Further, if an employer reduces an employee’s hours, the employee may use leave under the FFCRA to supplement for the hours the employee is no longer working.

Existing Employer Leave Policies and FFCRA Paid Leave – The DOL clarifies that E-PSLA benefits are not to be denied or reduced based on existing accrued leave provided by the employer. As of April 1st, employers may permit—but may not require—employees to choose between their existing accrued leave and FFCRA’s E-PSLA or E-FMLA. However, employers may permit—but may not require—employees to supplement any partially paid leave under the FFCRA with existing accrued paid leave in order to receive their full compensation. Ultimately, an employer cannot require an employee to use existing accrued paid leave if the employee prefers not to.

In sum, the DOL has provided beneficial guidance for the interpretation and implementation of the FFCRA. However, we are still far from clarity on each detail. And for employers trying to ensure compliance with the FFCRA, the devil is in the details. We anticipate this is still going to be an evolving area of law in the upcoming months. The employment law team at ShuffieldLowman is available to advise employers in these uncertain times based on the current legal updates available. For more information on COVID-19 legal updates, visit our resources page HERE.

View our other FFCRA Blogs Here:
Families First Coronavirus Response Act: Emergency Family and Medical Leave Expansion Act

FFCRA Emergency Unemployment Insurance Stabilization Act

FFCRA: Emergency Paid Sick Leave Act

**Shuffield Lowman anticipates changes to develop as both federal and Florida government responds to this unprecedented health emergency. We will provide updates as we are able in this developing legal situation and other COVID-19 related employment legislation that may be enacted in the coming weeks and months.

***Disclaimer: The information contained herein provides an overview of developing and ongoing legislation and does not constitute legal advice for any particular situation.

Authors: Dillon McColgan & Clay Roesch

Implementing the Families First Coronavirus Response Act: Department of Labor Provides Updated Guidance

FFCRA: Emergency Paid Sick Leave Act

What is The Emergency Paid Sick Leave Act (“E-PSLA”)

The Families First Coronavirus Response Act signed into law by President Trump on March 18, 2020, contains a number of provisions, with four in particular that have an immediate impact on employers and employees. In this article, we explain some of the legal implications of the Emergency Paid Sick Leave Act.

The Emergency Paid Sick Leave Act (“E-PSLA”) provides paid sick leave for certain employees for specified scenarios related to COVID-19. Just like E-FMLA, the E-PSLA goes into effect on April 1, 2020, and expires on December 31, 2020.

WHO IS COVERED?

Although “covered employer” under the E-PSLA is not clearly defined, it applies to private employers with fewer than 500 employees and public entities with at least one employee. The new law appears to exclude larger employers with 500 or more employees. Likewise, it also appears to apply to individuals acting on behalf of employers (e.g., supervisors, managers, owners, etc.).


WHO QUALIFIES?

Employees are entitled to paid sick leave under the E-PSLA for the following six reasons:

  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for an individual who is subject to a quarantine/isolation order of who has been advised to self-quarantine due to COVID-19 concerns.
  • The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter (as defined by FMLA) has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor.


HOW MUCH PAID SICK LEAVE MUST AN EMPLOYER PROVIDE?

Full-time employees are entitled to 80 hours of paid sick leave at their full rate of compensation for qualifying reasons (1), (2), and (3) provided above. For qualifying reasons (4), (5), and (6) listed above, a full-time employee is entitled to 80 hours of paid sick leave at two-thirds their rate of pay.

Part-time employees are entitled to payment equal to the average number of hours they worked over a two-week period. Note that the E-PSLA as is does not identify which two-week period the employer must use in this calculation. The Department of Labor is tasked with issuing guidelines on this matter within 15 days after enactment of the new law.

Paid sick leave is capped at $511 per day and $5,110 total per employee for use under qualifying reasons (1), (2), and (3); and capped at $200 per day and $2,000 total per employee for use under qualifying reasons (4), (5), and (6). The E-PSLA requires paid sick leave in addition to the employer’s existing paid leave policy, but any unused paid sick leave under E-PSLA does not carry over after December 31, 2020. Likewise, it does not have to be paid out upon separation of employment. The E-PSLA does not permit employers to substitute any prior paid leave they may have provided employees for COVID-19 related reasons. Moreover, employers must allow the employees to use E-PSLA paid sick leave before they use any remaining accrued paid leave that the employer provides.

 

OTHER IMPORTANT CONSIDERATIONS

Emergency paid sick leave under the E-PSLA shall be available immediately to employees regardless of how long the employee has been employed by the employer.

  • The Secretary of Labor will issue a model notice regarding employee rights under the E-PSLA within seven (7) days after enactment. Employers must post this notice in a conspicuous place where notices to employees are customarily posted.
  • Again, under the E-PSLA, The Secretary of Labor reserved the authority to issue regulations exempting small businesses with fewer than 50 employees when the imposition of the Act’s requirements would jeopardize the viability of the business as a going concern. To date, no further elaboration on this exemption has been made. It is possible that the Secretary of Labor will issue guidance regarding this exemption prior to April 2, 2020. But currently the application of this exemption is undetermined
  • Employers may not take adverse action against an employee who takes leave under the Act or files a complaint relating to the Act (the expected anti-retaliation provision).
  • Employers who violate the E-PSLA shall be considered to have failed to provide minimum wages under the Fair Labor Standards Act (“FLSA”) and are subject to the same penalties.

For the latest updates on the Emergency Unemployment Insurance Stabilization Act, contact our employment law team for information. To see other legal updates that are occurring from COVID-19, visit our resources page HERE. To see our other FFCRA blogs visit here:

View our other FFCRA Blogs Here:
Families First Coronavirus Response Act: Emergency Family and Medical Leave Expansion Act

FFCRA Emergency Unemployment Insurance Stabilization Act

Authors: Dillon McColgan & Clay Roesch

Implementing the Families First Coronavirus Response Act: Department of Labor Provides Updated Guidance

FFCRA: Emergency Unemployment Insurance Stabilization Act

The Families First Coronavirus Response Act signed into law by President Trump on March 18, 2020, contains a number of provisions, with four in particular that have an immediate impact on employers and employees. In this article, we explain some of the broad legal implications of the Emergency Unemployment Insurance Stabilization Act.

In short, this Act provides $1 billion in aid to state unemployment compensation programs so long as the states: (1) waive any waiting period; (2) waive the work search requirements for employees directly impacted by COVID-19 due to an illness in the workplace or isolation and self-quarantine as directed by a public health official; and (3) does not change employer accounts for COVID-19 related benefits.

The Act requires each state to improve access to benefits, including ensuring at least two methods of application or available including by phone, by internet, and in person. Likewise, the Act directs the Department of Labor to provide assistance to states to operate and expand work-sharing programs. Florida’s work-share program (Florida’s Short Time Compensation Program) provides wage compensation where employees experience reduced hours, rather than total loss of employment.

As the COVID-19 pandemic continues and the state’s unemployment program is stressed, we will continue to see how the provisions in this Act are actually implemented and to what extent.

For the latest updates on the Emergency Unemployment Insurance Stabilization Act, contact our employment law team for information. To see other legal updates that are occurring from COVID-19, visit our resources page HERE.

To see our other FFCRA blogs visit here:

View our other FFCRA Blogs Here:
Families First Coronavirus Response Act: Emergency Family and Medical Leave Expansion Act

FFCRA: Emergency Paid Sick Leave Act

 

Implementing the Families First Coronavirus Response Act: Department of Labor Provides Updated Guidance

Families First Coronavirus Response Act: Emergency Family and Medical Leave Expansion Act

Without question, the most impactful change to employment law driven by the COVID-19 pandemic is the Families First Coronavirus Response Act (“FFCRA”). The FFCRA was signed into law by President Trump on March 18, 2020, after passing through the House and Senate with minor changes. The FFCRA becomes effective on April 1, 2020, and its requirements will sunset on December 31, 2020, unless extended or modified by subsequent litigation.

The FFCRA contains a number of provisions, but there are four that have an immediate impact on employers and their employees. Below we have outlined the important updates on the Emergency Family and Medical Leave Expansion Act.

 

Emergency Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act (“E-FMLA”) expands the FMLA to add one new qualifying reason for leave related to COVID-19 and to provide partial paid leave for such leave. COVID-19 FMLA leave may be taken beginning on April 2, 2020.

 

WHO IS COVERED?

While FMLA usually only covers employers with 50 or more employees, the E-FMLA has expanded coverage to include all private employers with fewer than 500 employees and most public employers. Moreover, E-FMLA benefits are available to any full-time or part-time employee who has been employed by the employer for thirty (30) days. This departs from FMLA’s standard requirement that the employee must have worked for the employer for at least one year and 1250 hours.

 

WHO QUALIFIES?

The E-FMLA narrowly defines the scope of “qualifying need” an employee requires to qualify for the E-FMLA’s expanded benefits. The employee must be unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if their school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to the COVID-19 public health emergency declared by a federal, state, or local authority. In this event, the employee may take up to 12 weeks of coronavirus-FMLA leave.

 

PAID OR UNPAID LEAVE?

The next consideration is whether E-FMLA leave is paid or unpaid—the answer is both. The first ten (10) days of leave under the new E-FMLA are unpaid, but an employee may elect to use accrued paid leave during this 10-day period (including emergency paid sick leave which is discussed in detail below). After the first 10 days of E-FMLA leave, employers shall provide paid leave at no less than two-thirds of the employee’s regular rate of pay. The E-FMLA provides further formulas to determine how variable hour employees are to be paid. The paid leave is capped a $200 per day and $10,000 in the aggregate.

 

POSITION RESTORATION?

As with FMLA, E-FMLA provides job-protected leave, which means the employer must restore the employee to the same or similar position and pay upon the employee’s return to work. However, E-FMLA includes an exception for employers with fewer than 25 employees if the position no longer exists due to operational changes due to COVID-19 subject to certain conditions. Despite this exception, the employer still must make reasonable efforts to rehire the employee for up to one year if a similar position opens.

 

OTHER IMPORTANT CONSIDERATIONS

  • E-FMLA requires an employee to provide the employer with notice when practical if the employee foresees then need for COVID-19 leave.
  • Under the E-FMLA, the Secretary of Labor reserved the authority to issue regulations exempting small businesses with fewer than 50 employees when the imposition of the Act’s requirements would jeopardize the viability of the business as a going concern. To date, no further elaboration on this exemption has been made. It is possible that the Secretary of Labor will issue guidance regarding this exemption prior to April 2, 2020. But currently the application of this exemption is undetermined.
  • E-FMLA runs concurrent with traditional FMLA leave. E-FMLA leave is not an additional 12 weeks to the 12 weeks provided by traditional FMLA leave.
  • An employee may not bring a civil action against an employer because of the employer’s violation of the E-FMLA. However, the Secretary of Labor may enforce the law against employers through administrative and/or civil actions.

For the latest updates on E-FMLA, contact our employment law team for information. To see other legal updates that are occurring from COVID-19, visit our resources page HERE.

View our other FFRCA Blogs Here:
Families First Coronavirus Response Act: Emergency Family and Medical Leave Expansion Act

FFRCA Emergency Unemployment Insurance Stabilization Act

FFCRA: Emergency Paid Sick Leave Act

 

Authors: Dillon McColgan & Clay Roesch

 

 

Cooper M. Powell Selected as Rising Star for Cystic Fibrosis Foundation of Central Florida

ShuffieldLowman associate, Cooper Powell, has recently been selected as a Rising Star for the Cystic Fibrosis Foundation. The Orlando Rising Stars program is designed to raise awareness about cystic fibrosis, raise money for the CFF, and to recognize young professionals in the Central Florida community. Cooper is one of eight Rising Star recipients being recognized. The Rising Star program runs until May 7th, where it ends with an event at The Balcony Orlando.

Cystic Fibrosis is a life-threatening genetic disease that causes persistent lung infections and progressively limits the ability to breathe. In people with cystic fibrosis, a defective gene causes a thick buildup of mucus in the lungs, pancreas, and other organs. In the lungs, the mucus closes airways and traps bacteria leading to infections, extensive lung damage, and eventually respiratory failure. In the pancreas, the mucus prevents the release of digestive enzymes that allow the body to break down food and absorb vital nutrients. Roughly 30,000 people live with cystic fibrosis.

The Cystic Fibrosis Foundation is the leading organization in the United States that provides support for those battling cystic fibrosis. The CFF funds and accredits more than 130 cystic fibrosis care centers. Thanks to the CFF’s support of nearly $3 Billion dollars, we have seen advancements in medicine that have shown promise in controlling and, one day, curing cystic fibrosis. Orlando is fortunate to be home to three of these CFF accredited care centers.

If you would like to support Cooper’s pledge to The Cystic Fibrosis Foundation, you can donate to his fundraiser directly by visiting here: https://finest.cff.org/RisingStars2020/CooperPowell.

ShuffieldLowman is happy to be supporting Cooper by making The Cystic Fibrosis Foundation our Jeans’ Day Charity of the month, which allows employees to opt into wearing jeans on Friday if they donate to our monthly charity.