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 regardless of whether full-time or part-time.
  • EXCEPTION: If an employee is a healthcare provider or an emergency responder, the employer may choose not to provide paid sick leave to those employees.  (The DOL may issue guidance on this point.)
• Affirmative Requirements for Employers under the Act:

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 if the Act becomes law, it will take effect 15 days after President Trump’s execution of the law and will remain effective until December 31, 2020.

Emergency Paid Sick Leave

• Under the Act, full-time employees will immediately become entitled to up to 80 hours of emergency paid leave

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 the leave period must be paid or can be unpaid depends mostly on the employee’s classification under the federal Fair Labor Standards Act as “exempt” or “non-exempt,” the particular state laws of the state in which the employee works, and the employer’s own sick leave policies.

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 December 31 of the reporting year.
  • The “workforce snapshot period” does not need to be the same for 2017 and 2018, nor does it need to align with the pay period used for submitting Component 1 data.
• Pay Data
  • Employers will submit Component 2’s pay data by
    

As a result of recent federal litigation, the Equal Employment Opportunity Commission (“EEOC”) has announced that employers must submit pay data in their annual EEO-1 reports to the agency for calendar years 2017 and 2018 by September 30, 2019.  Although not currently active, the EEOC expects a web-based portal for the collection of the data to be open by mid-July 2019.  The portal will be available at https://eeoccomp2.norc.org.

In addition to the portal, the EEOC intends to issue guidance, including FAQs and other materials, to assist employers in mid-July 2019.  In the meantime, the Department of Justice has filed a Notice of Appeal to the federal litigation that lifted the EEOC’s stay on collecting such pay data.  Likewise, the EEOC’s helpdesk is set to become operational this week and can be contacted as follows:

Email: EEOCcompdata@norc.org

Toll Free Telephone: (877) 324-6214

Although an appeal has been filed, the EEOC is proceeding with enforcement of the regulation, so employers should not wait on the outcome of the appeal to begin compliance efforts. If they have not already done so, employers should immediately begin reviewing their collection processes to ensure that they are prepared to report the required pay data by September 30, 2019.

Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers review and comply with EEO-1 reporting obligations.  If you or your organization would like more information or assistance in preparing EEO-1 reports, please contact an attorney in the Labor

Update to our April 11 article:

Earlier today, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered employers to submit worker pay data to the Equal Employment Opportunity Commission (“EEOC”) by September 30, 2019. In so ruling, the Court rejected arguments from worker advocate groups who had sought to require the collection of pay data by May 31, 2019.

Pursuant to the Court’s Order, employers must submit two years’ worth of pay data to the EEOC.  While data for 2018 must be included in an employer’s September 30th submission, the EEOC is free to choose whether the second year of data will come from 2017 or 2019.   If the EEOC elects to collect data from 2017, employers will be required to submit the 2017 pay data by September 30, 2019 as well.  If the agency elects to collect data from 2019, employers will be required to submit the 2019 pay data in the spring of 2020.  The EEOC has until May 3, 2019 to decide whether it will collect 2017 pay data or 2019 pay data.

If not already done, employers should immediately begin reviewing their collection processes to ensure that they are prepared to report the required pay data by September 30, 2019.

Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers review and comply with EEO-1 reporting obligations.  If you or your organization would like more information or assistance in preparing EEO-1

In court documents filed on April 3, 2019, the Equal Employment Opportunity Commission (“EEOC”) announced that employers may be required to submit pay data to the agency by September 30, 2019.

The filing was made after Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered the EEOC to describe when and how it will comply with the Court’s March 4th Order lifting the White House’s Office of Management and Budget’s August 2017 stay on the EEOC’s collection of pay data.

Pay data has received much attention from employers and advocates alike since the Court’s March 4th Order, but the EEOC has largely remained silent until this recent filing.  For example, on March 18, 2019, when the EEOC opened its online portal for filing EEO-1 reports for 2018 (which are due by May 31, 2019), the portal did not include any request for pay data.  Instead, the agency issued a statement that same day noting that it was “working diligently on next steps” regarding the collection of pay data.

In addition to identifying a date by when employers may need to submit pay data, the EEOC’s April 3rd filing also proposes that employers only be required to submit pay data for 2018 (rather than 2017 and 2018) and describes the agency’s plan to use a data and analytics contractor to develop a new reporting program to collect the data.

The September 30, 2019 deadline, however, is not set in stone.  Worker advocates objected to the

While no federal law requires employers to provide employees with paid sick leave benefits, such an obligation does exist under certain state and municipal laws, including but not limited to those in Connecticut, California, Illinois, Massachusetts, Oregon, Vermont, Washington, D.C., Seattle, and New York City.

The scope of each of these laws, however, varies greatly. For example, while Connecticut’s law generally only applies to hourly workers in certain “service” occupations, California’s law generally applies to all employees, including temporary employees, who work in the state for 30 or more days per year. The consequences for failing to comply with the relevant state or municipal law likewise vary, with certain locales providing employees with their own private right of action.

In order to determine what, if any, paid sick leave obligations it has, employers should be sure to familiarize themselves with the following information:

• The states or municipalities that have laws requiring paid sick leave;
• The types of industries and/or employers to which each applicable law applies;
• What, if anything, an employee must do to qualify for paid sick leave benefits under each applicable law;
• The type and amount of paid sick leave to which an employee is entitled under each applicable law;
• How paid sick leave benefits are accrued under each applicable law;
• The purposes for which paid sick leave may be used under each applicable law; and
• Whether paid sick leave benefits must be paid out upon termination under each applicable law.

Bryan Cave LLP has a