Your Families First Coronavirus Response Act
questions answered! (Some of them, anyway)
By Robin Shea
Constangy, Brooks, Smith and Prophete, LLP / Winston-Salem Office
Yesterday the U.S. Department of Labor published three pieces of guidance
on the Families First Coronavirus Response Act provisions relating to
expanded leave under the Emergency Family and Medical Leave Expansion
Act and paid sick leave under the Emergency Paid Sick Leave Act.
The guidance doesn’t clarify as much as we had hoped, but it does
provide some helpful information about calculating number of employees
for coverage purposes, calculation of paid leave, and other issues. And
considering that the DOL had only a week to issue guidance, we probably
should not complain.
This bulletin will focus on the most helpful and interesting information in the
guidance. For more details, you can read the FFCRA Q and A, the guidance
on employer obligations, and the guidance on employee rights.
Please note that this bulletin assumes you already have some familiarity
with the expanded FMLA and paid sick leave provisions of the Families First
Act. If this is all new to you, please read our earlier bulletin summarizing
the legislation, and then come back. We’ll wait.
Q. When does this thing take effect?
Most of us thought it would be April 2. President Trump signed the legislation
on the night of March 18. The legislation was to take effect 15 days after
enactment. Using March 19 as Day One, that would make the effective date
April 2. But apparently the DOL used the date of signing as Day One, making
the effective date April 1.
Q. How do I know whether I have 500 employees or more?
By looking only at employees in the 50 states, the District of Columbia,
and “any Territory or possession of the United States.” Part-time, as well
as full-time employees count. You should also count employees on leave,
employees whom you employ jointly with another employer, and day laborers
supplied to you by a temp agency whether you are the agency or the client
of the agency. Independent contractors do not count.
Separate establishments of a single entity should be counted together. If two
entities are “integrated employers” within the meaning of the FMLA, then the
employees of the two entities should be counted together.
Q. If I have fewer than 50 employees, and I want to be exempted from complying with these laws, how do I do it?
You would have to show that complying with the laws “would jeopardize the viability of [your] business as a going concern.” The DOL has two things to say about that: (1) you need to document how you meet that requirement, and (2) please don’t send any stuff to the DOL. (Their hands are full as it is.) Regulations will be coming that will address the exemption issue in more detail.
Q. I have an employee who regularly works 48 hours a week. How would I compute her paid leave?
Paid leave is generally computed by taking the employee’s regular rate and multiplying it by the number of
hours worked. If the employee works 48 hours a week, then all 48 hours should count, so in this case it would be [Regular Rate] x 48 = [This Employee’s Paid Leave Amount for One Week]. But under the FFCRA, you’d have to use the employee’s average regular rate over a period of six months, ending with the date on which leave is taken. If the employer hasn’t worked for you for six months, you can calculate the paid leave amount by taking the average regular rate for each week that the employee has been working for you.
Although overtime hours are included in calculating the amount of paid leave due, you do not have to pay an overtime premium.
Q. What is a “regular rate”?
Very generally, this is an employee’s weekly pay expressed as an hourly rate. You add up all of the pay the employee receives in a given workweek (including wages, salaries, commissions, piece rates, etc.) and divide it by the number of hours that the employee actually worked during that workweek. More information is available here.
Q. As of now, the entire State of California is on shelter-in-place. Does that mean all of my employees
in California with school-age kids (all of whom are home because the schools closed) will be entitled to expanded FMLA and paid sick leave?
Unfortunately, this is not one of the questions that the DOL elected to answer this go-round. But it’s a very good one. (P.S. If the employees can work from home, then they are not entitled to expanded FMLA leave or
paid sick leave.)
Q. I don’t get how the expanded FMLA and the paid sick leave laws interact with each other. Please explain.
The expanded FMLA applies only when the employee can’t work or telework because he or she has to take care of his or her kids, who are home because of a school or day care closing because of coronavirus, or because the kids’ “child care provider” (i.e., babysitter or nanny) is not available because of coronavirus. This is the only qualifying reason for expanded (and paid) FMLA leave. The first 10 days (two weeks) of expanded FMLA leave are unpaid, but from that point forward, the employee would be entitled to paid FMLA leave at 2/3 the employee’s regular rate for a total of 10 additional weeks. Having kids home from school or child care because of coronavirus is also a qualifying reason for paid sick leave, although there are also other qualifying reasons for paid sick leave. Paid sick leave is payable on Day One of the leave. The amount varies, depending on the reason that the employee needs the leave. But
employees get a maximum of only 80 hours of paid sick leave, and then they’re done. The total dollar amount of paid leave is capped under both laws.
So, let’s say an employee is eligible for expanded FMLA leave and paid sick leave -- in other words, he was employed at least 30 days before his leave began, and he has to stay home with his kids, whose school has closed for a coronavirus-related reason -- then his paid sick leave would cover the first 10 days of leave. That would exhaust his entitlement under the Paid Sick Leave Act. Then he would be entitled to 10 more weeks of
paid leave under the expanded FMLA, which would be paid at 2/3 of his regular rate. See? It’s easy!
Q. As soon as I heard that President Trump signed the FFCRA into law, I began giving my employees paid leave if they were out of work for a reason related to coronavirus. On April 1, can I take a “credit” for this leave that I gave before the law took effect?
No, these provisions of the FFCRA do not apply retroactively, according to the DOL.
Q. Aren’t we supposed to post a notice about these laws?
Yes. And the DOL says it will be issuing a notice no later than today.
Q. Is this it?
No. The DOL says that it will be issuing formal regulations, and will continue helping employers and employees comply with these new laws. And don’t forget -- as we reported earlier this week, the DOL is taking a nonenforcement position for the first 30 days that the FFCRA is in effect, as long as the employer is trying in good faith to comply
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2. News Release - March 24, 2020
U.S. DEPARTMENT OF LABOR PUBLISHES GUIDANCE EXPLAINING PAID SICK LEAVE AND EXPANDED FAMILY AND MEDICAL LEAVE UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT
WASHINGTON, DC – Today, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced its first round of published guidance to provide information to employees and employers about how each will be able to take advantage of the protections and relief offered by the Families First Coronavirus Response Act (FFCRA) when it takes effect on April 1, 2020.
FFCRA will help the United States combat and defeat COVID-19 by giving all American businesses with fewer than 500 employees funds to provide employees with paid leave, either for the employee’s own health needs or to care for family members. The legislation will ensure that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus while at the same time reimbursing businesses.
The guidance – provided in a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers document – addresses critical questions, such as how an employer must count the number of their employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate the wages employees are entitled to under this law.
“Providing information to the American workforce is a top priority for the Wage and Hour Division,” said Administrator Cheryl Stanton. “With so many workers and so many employers struggling to find their way in these trying conditions, providing guidance on a rolling basis will allow workers and businesses to prepare for the law to go into effect on April 1, 2020. We remain committed, and are working around the clock to provide the information and tools for employees and employers alike.”
The guidance announced today is just the first round of information and compliance assistance to come from WHD. A workplace poster required for most employers will be published later this week, along with additional fact sheets and more Q&A.
WHD provides additional information on common issues employers and employees face when responding to COVID-19, and its effects on wages and hours worked under the Fair Labor Standards Act and job-protected leave under the Family and Medical Leave Act at https://www.dol.gov/agencies/whd/pandemic.
For more information about the laws enforced by the WHD, call 866-4US-WAGE, or visit https://www.dol.gov/agencies/whd.
For further information about COVID-19, please visit the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention.
WHD’s mission is to promote and achieve compliance with labor standards to protect and enhance the welfare of the nation's workforce. WHD enforces federal minimum wage, overtime pay, recordkeeping and child labor requirements of the Fair Labor Standards Act. WHD also enforces the Migrant and Seasonal Agricultural Worker Protection Act, the Employee Polygraph Protection Act, the Family and Medical Leave Act, wage garnishment provisions of the Consumer Credit Protection Act and a number of employment standards and worker protections as provided in several immigration related statutes. Additionally, WHD administers and enforces the prevailing wage requirements of the Davis Bacon Act and the Service Contract Act and other statutes applicable to federal contracts for construction and for the provision of goods and services.
The mission of the U.S. Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.
Agency Wage and Hour Division
Date March 24, 2020
Release Number 20-512-NAT
Contact: Department of Labor National Contact Center
Email DOL-Info@dol.gov
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3. Georgia Department of Public Health COVID-19 Daily Status Report
Report For: 03/25/2020 (12:00 pm)
*Note: To ensure the most updated version of this webpage, please refresh your browser.*
To ensure that the numbers being provided through the COVID-19 data tool are the most current numbers available, the updates are done at NOON and 7:00 pm every day.
These data represent confirmed cases of COVID-19 reported to the Georgia Department of Public Health as of 12:00pm 03/25/2020. A confirmed case is defined as a person who has tested positive for 2019 novel coronavirus.
Confirmed cases and deaths in Georgia.
COVID-19 Confirmed Cases No. Cases (%)
Total 1247 (100%)
Hospitalized 394(31.6%)
Deaths 40 (3.21%)
