BCLP At Work

BCLP At Work

Other Posts

Main Content

U.S. IRS Publishes Much-Anticipated Guidance on Documents that Employers Must Retain Under the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (“FFCRA”), which generally requires U.S. employers with fewer than 500 employees to provide paid sick leave (“Paid Sick Leave”) and emergency family and medical leave (“Emergency FMLA Leave”) benefits to employees in connection with COVID-19, officially goes into effect today.  This also means that employers are now able to immediately seek a quarterly payroll tax credit equal to 100% of the qualified Paid Sick Leave and Emergency FMLA Leave wages paid to employees under the FFCRA.

As we summarized in an earlier post, this past weekend the Department of Labor (“DOL”) revised its guidance to refer employers to the Internal Revenue Service (“IRS”) for questions regarding what documentation employers must retain in order to receive a tax credit.  Late on March 31, 2020, the IRS published this much-anticipated guidance.  Below are highlights from the IRS’s guidance on document collection and retention for employers to consider as they begin to comply with the FFCRA.  Summaries of other aspects of the IRS’s guidance will be available soon.

  • Leave for Which Tax Credits are Available: The IRS guidance confirms that tax credits are available only for Paid Sick Leave and Emergency

US DOL Publishes Revised Guidance on the Families First Coronavirus Response Act

DOL Publishes Revised Guidance on the Families First Coronavirus Response Act

This weekend, the Department of Labor (“DOL”) released a revised and updated set of Questions and Answers (“Q&A”) regarding the Families First Coronavirus Response Act (“FFCRA”).  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave (“Paid Sick Leave”) and emergency family and medical leave (“Emergency FMLA Leave”) benefits to employees in connection with COVID-19.

Notably, the new guidance includes a revision to the guidance that was just issued last Thursday, March 26, regarding what documentation employers must collect from employees requesting leave under the FFCRA.  Our summary of the DOL’s initial guidance is available here, but please note that in light of the DOL’s updated guidance, employers should rely on this post’s summary of documentation requirements.  The new guidance does not explicitly outline what documentation employers must collect.  Instead, it notes that if employers want to seek a tax credit for the Paid Sick Leave or Emergency FMLA Leave, they should “retain appropriate documentation.” The DOL then refers employers to consult with “Internal

U.S. DOL Publishes Additional Guidance on the Families First Coronavirus Response Act

On March 26, 2020, the U.S. Department of Labor (“DOL”) released an updated set of Questions and Answers (“Q&A”) regarding the Families First Coronavirus Response Act (“FFCRA”).  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave (“Paid Sick Leave”) and emergency family and medical leave (“Emergency FMLA Leave”) benefits to employees in connection with COVID-19.

The updated Q&A builds on guidance and model notices that the DOL published earlier this week.  Below are some highlights from the updated Q&A for employers to consider as they prepare to comply with the FFCRA:

  • Documentation: Employers must require employees to provide appropriate documentation to support their need for Paid Sick Leave and Emergency FMLA Leave. This documentation must be retained if an employer intends to seek a tax credit for the leave.
    • For Paid Sick Leave – This documentation should include 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. Employers should also require

DOL Publishes Model Notice for the Families First Coronavirus Response Act

On March 25, 2020, the Department of Labor (“DOL”) published model notices for federal and private employers regarding employees’ rights under the Families First Coronavirus Response Act (“FFCRA”).  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave and emergency family and medical leave (“Emergency FMLA”) benefits to employees in connection with COVID-19.

The model notices, along with Frequently Asked Questions regarding the notices, follow a series of other informal guidance issued by the DOL in the last week.  Below are some highlights from the new guidance for employers to consider regarding the notices:

  • Posting Requirement: All covered employers, including small businesses, must post the model notice.
  • Posting Location: Employers must post the notice either in one location where all employees will see it or in various locations to accommodate all employees if no single location is available.  If workplaces are closed due to local stay-at-home orders, physical posting may not be possible at this time, in which case electronic posting is probably required.
  • Electronic Posting: Employers may, but are not required to, satisfy

DOL Publishes Informal Guidance on the Families First Coronavirus Response Act

On March 24, 2020, the Department of Labor (“DOL”) released an initial set of Questions and Answers (“Q&A”) regarding the Families First Coronavirus Response Act (“FFCRA”).  As we’ve summarized in earlier posts, the FFCRA was signed into law on March 18, 2020 and generally requires U.S. employers with fewer than 500 employees to provide paid sick leave and emergency family and medical leave (“FMLA”) benefits to employees in connection with COVID-19.

The Q&A is the latest in a series of publications from the DOL and the Internal Revenue Service to shed light on the FFCRA.  Below are some highlights from this guidance for employers to consider as they prepare to comply with the FFCRA:

  • Effective Date: The FFCRA will become effective on April 1, 2020 and will expire on December 31, 2020.
  • Retroactivity: Benefits under the FFCRA are not retroactive.  Any leave provided to employees prior to April 1, 2020 will not count toward the employer’s leave obligations under the FFCRA, and cannot form the basis for payroll tax credits.
  • Employee Threshold Requirements Generally:
    • The 500-employee threshold is calculated based on the number of US employees an employer has as of the date

Families First Coronavirus Response Act: Emergency Family and Medical Leave Provisions (Part 2 of 2)

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA or Act”).  The FFCRA provides for two types of leave for employees:  Paid Sick Leave (up to 80 hours) and Emergency Family and Medical Leave (up to 12 weeks of combined paid and unpaid leave).  This post is part 2 of 2 summarizing the requirements of the FFCRA and focuses on Emergency Family and Medical Leave.

  • Scope: Unlike the paid sick leave provisions of the FFCRA, the emergency family and medical leave provisions are not standalone law.  Rather, these provisions amend the Family and Medical Leave Act (“FMLA”), thus providing for “Emergency FMLA” leave.  However, the amendments (such as the changed definition of Covered Employer and Eligible Employee) apply only to Emergency FMLA provisions and do not amend the pre-existing provisions of the FMLA.
  • Effective Dates: The Act will become effective no later than April 2, 2020 and expire on December 31, 2020.
  • Covered Employer: Anyone who has fewer than 500 employees[1] and otherwise satisfies the elements of the definition of “Employer” under the FMLA.[2]
    • EXCEPTIONS:
      • DOL may issue guidance excluding employers with fewer than 50

Families First Coronavirus Response Act: Paid Sick Leave Provisions (Part 1 of 2)

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA or Act”).  The FFCRA provides for two types of leave for employees:  Paid Sick Leave (up to 80 hours) and Emergency Family and Medical Leave (up to 12 weeks with a combination of paid and unpaid leave).  This post is part 1 of 2 summarizing the requirements of the FFCRA and focuses on Paid Sick Leave. 

  • Effective Dates: The Act will become effective no later than April 2, 2020 and expire on December 31, 2020.
  • Department of Labor (“DOL”) Obligations: Must issue a “Model Notice” for employers to post within 7 days of enactment and guidance within 15 days of enactment.
  • Covered Employer – Anyone engaged in commerce with fewer than 500 employees,[1] as defined under the Fair Labor Standards Act (“FLSA”).
    • EXCEPTION – The DOL may issue guidance excluding employers with fewer than 50 employees from the paid leave requirements of the Act if the paid sick leave would “jeopardize the viability of the business as a going concern.”
  • Eligible Employees – All employees (as defined under the FLSA), regardless of length of employment, and

The Families First Coronavirus Response Act May Bring (Slightly Modified) Paid Leave to Employees Working For Employers With Fewer Than 500 Employees And To Government Employers

March 18, 2020

Categories

With the novel coronavirus (“COVID-19”) continuing to spread across the country, the U.S. House of Representatives (“House”) voted in the early hours of March 14, 2020 to provide emergency relief to Americans through the Families First Coronavirus Response Act (the “Act”).  While the Act has not yet become law – it must still be passed by the U.S. Senate and signed by President Donald Trump – it is already getting a great deal of attention.

The version of the Act that the House first adopted on March 14th included a variety of resources and benefits, including emergency paid sick leave and emergency paid family and medical leave, for which the Act provides covered employers with a tax credit.  Just two days later, however, on March 16, 2020, the House voted to trim back some of these benefits with respect to emergency paid family and medical leave.

Below is a summary of the latest version of the Act’s highlights for employers; however, employers should note that if the Act becomes law, the emergency paid leave provisions described below will generally only apply to private employers with fewer than 500 employees and to government employers.

In addition, employers should also note that

U.S. Employers Weigh EEOC Guidance in Responding to Coronavirus

As the coronavirus disease 2019 (COVID-19) continues to spread, U.S. employers considering taking preventative measures to reduce transmission should bear in mind employment laws that may restrict certain precautions, including the Americans with Disabilities Act (“ADA”).

Basic precautionary measures like promoting washing hands, encouraging employees to stay home when they are sick, and other good hygiene practices recommended by the Centers for Disease Control and Prevention (“CDC”) are unlikely to raise concerns under the ADA.  Indeed, recent guidance from the Equal Employment Opportunity Commission (“EEOC”) makes clear that the CDC’s guidelines and suggestions for employers regarding COVID-19 do not violate the ADA.

However, the ADA does prohibit covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk to the health or safety of others that can’t be eliminated by reasonable accommodation).

Nonetheless, it is likely permissible for employers to ask employees who travel to or from an area affected by COVID-19 to work from home or, if remote work is not possible, take leave for 14 days (the incubation period for COVID-19) because the employees pose a direct threat under the ADA.   Whether

EEOC Publishes Much Anticipated EEO-1 Component 2 Guidance in Advance of Employers’ September 30th Filing Deadline

On July 1, 2019, the Equal Employment Opportunity Commission (“EEOC”) published its much anticipated guidance on the collection and submission of Component 2 data of the EEO-1 report.  As a reminder, covered employers are required to submit Component 2 data (which covers certain pay data and hours worked data) for report years 2017 and 2018 by September 30, 2019.  The EEOC intends to use Component 2 data to identify potentially unlawful pay disparities based on race/ethnicity and sex.

The guidance, which is published on the EEOC’s web-based portal, includes a variety of information, including a sample EEO-1 Component 2 report form, a Fact Sheet, and a Frequently Asked Questions section (“FAQ”).

Much of the new guidance aligns with that which the EEOC published in 2016, before the White House’s Office and Management and Budget stayed the collection of Component 2 data in August 2017.  Below are a few important highlights from the new guidance:

  • Workforce Snapshot Period
    • Employers need only submit Component 2 data for employees employed during the “workforce snapshot period” for each of the relevant reporting years.
    • The “workforce snapshot period” is an employer-selected pay period between October 1 and
The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.