In COVID-19, Labor and Employment

By Brett Schneider (Labor & Employment Division)

Since the Families First Coronavirus Response Act (“FFCRA”) was approved, employers nationwide have been tackling tough questions and scrambling to implement new policies.  Here are some of the frequently asked questions that we have been addressing of late:

  • What is the FFCRA effective date?  The FFCRA’s paid leave provisions are effective April 1, 2020 and apply to leave taken between April 1, 2020 and December 31, 2020.
  • Are the FFCRA’s paid leave provisions retroactive?  No.
  • Can I have more time to comply with the FFCRA?  Despite the April 1, 2020 effective date, the U.S. Department of Labor (“DOL”) will not enforce the FFCRA for thirty days to provide employers with time to comply with the Act. Under this policy, DOL will not bring an enforcement action against any employer for violations of the Act so long as the employer has acted reasonably and in good faith to comply with the Act.  However, this does not necessarily prevent an employee from pursuing a private cause of action for noncompliance during the first 30 days after the effective date.
  • I have to lay off several employees prior to April 1.  Do I owe them 2 weeks of paid leave?  Pursuant to the Emergency Paid Sick Leave Act (EPSLA), employers with less than 500 employees and all public agencies (regardless of the number of employees) must provide employees with 2 weeks of paid leave (pursuant to the parameters and categories specified in EPSLA).  Because the Act’s paid leave provisions are not in effect until April 1, 2020, technically there is no requirement to pay employees for this leave prior to that date. Note, however, that creative plaintiff’s lawyers may claim that taking action immediately before the effective date constitutes interference with the rights created under the FFCRA.
  • Can I obtain a hardship exemption?  How?  The DOL states that if a business has fewer than 50 employees and if providing child care-related paid sick leave and expanded family and medical leave would jeopardize the viability of that business as a going concern, the business should document why and how it meets the criteria set forth by the DOL (which will be addressed in more detail in forthcoming regulations published by DOL).
  • Can an employee take leave under the Emergency Family and Medical Leave Expansion Act (E-FMLEA) if they have already taken 12 weeks of FMLA leave this year?  No – an employee gets a total of 12 weeks combined.
  • Can my employees take paid leave under the FFCRA on an intermittent basis?  Unclear.  An earlier version of the bill contained a provision stating that paid family leave could not be taken on an intermittent or reduced work schedule basis. It is unclear if the omission of this provision in the enacted version means that employers should allow employees to use paid family leave on an intermittent basis.  It is likely (based upon this legislative history and because the FMLA elsewhere permits intermittent leave) that intermittent leave is permissible under the FFCRA. However unless and until the DOL provides additional guidance on this point, employers must determine how to address this issue.
  • What type of notice do I have to provide to my employees?  DOL has published posters which must be placed in conspicuous places on their premise.  Given that much of the workforce is teleworking, the DOL has advised employers to email or direct mail the notice to employees or to post the notice on an employee informational website.  These actions will satisfy the notice requirement. Posters are available here and here.
  • What employees are considered “emergency responders” and “health care providers” that may be excluded from the protections under the FFCRA?  The DOL has the authority to issue regulations to exclude certain health care providers and emergency responders.  However, the DOL has not yet provided any guidance. As such, each public entity must determine how it defines “emergency responders” and “health care providers.”  At this point, it’s safe to assume that doctors, nurses, police officers, firefighters, and paramedics may be exempted.
  • If my employee claims to be out because they are sick with, or were exposed to, the coronavirus, can I require a doctor’s note?  Yes.  If an employee is claiming entitlement to EPSL under categories 1 (they are subject to a Federal, State, or local quarantine or isolation order related to COVID-19), 2 (they have been advised by a health care provider to self-quarantine due to concerns related to COVID-19), 3 (they are experiencing symptoms of COVID-19 and are seeking a medical diagnosis), and/or 4 (they are caring for an individual who is under a quarantine order or who has been advised by a health care provider to quarantine due to concerns related to COVID-19), the employer may reasonably request proof (from a health care provider).
  • Will the Federal Government reimburse me for providing paid leave under FFCRA?  Covered employers (not including the US government, the government of any state or political subdivision thereof, or any agency or instrumentality thereof) qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA.  Qualifying wages are those paid to an employee who takes leave under the FFCRA for a qualifying reason, up to the appropriate per diem and aggregate payment caps. The tax credit goes into effect on April 1, 2020 and will remain in effect until December 31, 2020 unless extended or modified.  The tax credit will be equal to 100% of the amount any employer pays for benefits under the FFCRA.
  • How do I claim the tax credit?  Eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS.  The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.  If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in 2 weeks or less. (The details of this new, expedited procedure will also be announced next week by the IRS).

The information contained in this document does not constitute legal advice.  If you have questions about the matters discussed, please feel free to contact any of our labor and employment lawyers.

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