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 Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.”

In addition to this revision, the updated guidance includes a number of questions and answers regarding new and key

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 documentation demonstrating the reason why the leave is necessary, including: (i) the sources of any quarantine or isolation order (including a copy of any federal, state, or local quarantine or isolation order); and/or (ii) the name of the health care provider advising the employee to self-quarantine, along with a note
    

Summary

As an update to our earlier blog “Coronavirus: UK Job Retention Scheme – what we know so far from the UK government’s 20 March 2020 announcement”, please see below for further details.

Analysis of updated government guidance in relation to the Coronavirus Job Retention Scheme (as at 27 March 2020) >

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 their posting obligations by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.
• Languages Other than English: The DOL is working on non-English versions of the model notices, but employers are not required to post the notices in any
  

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 the employee’s leave is requested.
  • The following types of employees should be included in an employer’s calculation: full-time employees, part-time employees, employees on leave, temporary employees who are jointly employed, and day laborers supplied by a temporary agency.
  • Independent contractors (as defined under the Fair Labor Standards Act [“FLSA”]) are
    

As we explore ways to manage through these difficult economic times, employers who are looking for ways to assist employees who have seen their compensation reduced or former employees whose jobs have been temporarily eliminated due to the impact of the coronavirus quarantine may want to consider making interest-free loans available to those employees as a way to assist them economically during this difficult period.

Click here to read the Alert in full.

Summary

As an update to our earlier blog “Coronavirus – UK job retention scheme”, we have analysed the Retention Scheme announced by the UK government on 20 March 2020, based on the information released so far.

Analysis of the Coronavirus Job Retention Scheme (as at 20 March 2020) >

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 employees from the requirement to provide Emergency FMLA, if the Emergency FMLA would “jeopardize the viability of the business as a going concern.”
    • Regardless of whether such guidance is issued, employers with fewer than 50 employees will not be subject to an FMLA action by employees for failing to provide
      

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:

Summary

We understand that our clients and contacts will be addressing complex COVID-19 / Coronavirus related HR issues in multiple jurisdictions. BCLP, together with our local counsel friends, have produced a global Q&A document answering nine key HR issues, covering 35 jurisdictions.

Our global Q&A document answers FAQs about HR issues arising from Coronavirus / COVID-19 across 35 jurisdiction including the United Kingdom, United States, Bulgaria, Hong Kong, Germany, Italy, Republic of Ireland, South Africa and Ukraine.

Download the HR Q&A to read about issues affecting your country >

We have written advice covering the following questions:

• What if an employee refuses to attend work due to fear of the coronavirus?
• What if an employee refuses to undertake work travel to an ‘at risk’ area?
• Can an employee be stopped from holidaying to an ‘at risk’ area?
• If an employee is off sick due to the coronavirus are they entitled to sick pay?
• What should we do if someone suffering from the coronavirus comes into the workplace?
• What if the workplace needs to be closed?
• Can an employee be required by their employer to ‘self-isolate’?
• What physical measures should employers be taking?
• How should employers deal with discriminatory behaviours?

If you have any questions that we have not covered, please contact any member of the team and we could be happy to help.