Department of Labor Issues Extensive Guidance on the Families First Coronavirus Response Act FAQ 

March, 2020 - Trip Conrad, Jeb Gerth

Beginning on March 24, the Department of Labor (DOL) has been steadily releasing information and guidance on the Families First Coronavirus Response Act (FFCRA). We have been reviewing those releases to find the important information employers need to comply with the FFCRA and have summarized our analysis below.

What is the FFCRA?

On March 18, Congress passed the FFCRA, which creates two significant entitlements for paid leave related to COVID-19 for certain employees at private employers with less than 500 employees.

First, the FFCRA enacts the Emergency Paid Sick Leave Act (EPSLA), establishing a new “Emergency Paid Sick Leave.” This emergency paid sick leave provides up to two weeks of fully paid leave to employees who are unable to work or telework for one of six COVID-19 related reasons: (1) the employee is subject to a federal, state, or local quarantine or isolation order, (2) the employee has been advised by a healthcare provider or public health agency to self-quarantine, (3) the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis, (4) the employee is caring for an individual subject to a quarantine order or advice, (5) the employee is caring for a child whose school or childcare facility is closed due to COVID-19 precautions, or (6) substantially similar reasons as specified by the Department of Health and Human Services.

Second, the FFCRA amends the Family Medical Leave Act (FMLA) to include the Emergency Family and Medical Leave Expansion Act (EFMLA) establishing a new “Public Health Emergency Leave.” This public health emergency leave provides up to twelve weeks of partially paid leave for employees who cannot work or telework because they must care for their children (including adopted and foster children, stepchildren, legal wards, children for whom the employee is standing in loco parentis, and disabled adult children who are incapable of self-care) because the child’s school or childcare facility is closed due for a COVID-19 related reason.

The FFCRA also provides a tax credit from the federal government for employers to cover the full cost of these leaves provided to their employees. Leave benefits provided in excess of the leave mandated by the FFCRA do not qualify for a tax credit. The tax credit may be applied to offset payroll taxes equal to the amount of qualifying leave that an employer paid, rather than deposit that amount with the IRS. The payroll taxes available for retention include: withheld federal income taxes, the leave taking employees’ shares of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.

READ NOW: Our complete Families First coverage

What new information did the DOL publish?

On March 24, the DOL issued an official Frequently Asked Questions (“FAQs”) with fourteen answers to some of the major questions employers have been asking about the FFCRA since its passage, including the methods for calculating leave benefits and determining who is covered under the law. The DOL also issued two fact sheets for employees and employers about their rights and obligations under the FFCRA. The DOL subsequently added twenty-three more questions and answers to the FAQs on March 27 and another twenty-two questions on March 28.

Along with the FAQs and fact sheets, the DOL also published Field Assistance Bulletin No. 2020-1, explaining that it will not bring any enforcement actions against employers making reasonable, good faith efforts to comply with the FFCRA through April 17, 2020. Employers attempting to implement the new requirements under the FFCRA will accordingly have some additional time to come into compliance without penalty so long as they are making these reasonable, good faith efforts. The factors for determining reasonable, good faith efforts are (1) the employer remedying any violations as soon as practicable, (2) the violations were not “willful,” and (3) the employer submitting a written commitment to the DOL to comply with the FFCRA in the future. Employers should be aware, however, that employees could still bring their own lawsuits for violations occurring beginning on April 1, 2020.

 

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