Member Article

Introduction

On April 1, 2020 — the effective date of the Families First Coronavirus Response Act (FFCRA) — the Department of Labor (DOL) issued “temporary regulations” to interpret and enforce the landmark legislation passed by Congress “to assist working families facing public health emergencies” arising out of the COVID-19 pandemic. The Regulations which expire with the FFCRA on December 31, 2020, follow intense interest and debate over the meaning and scope of the FFCRA’s language and the 59 questions and answers issued by the DOL in late March.

The FFCRA contains two components: (1) the Emergency Paid Sick Leave Act (EPSLA), which entitles certain employees to take up to two weeks of paid sick leave; and (2) the Emergency Family and Medical Leave Expansion Act (EFMLEA), which permits certain employees to take up to 12 weeks of expanded family and medical leave, 10 of which are paid, for specified reasons related to COVID-19. The Regulations provide the framework through which those two components work and how employers can comply with them, answering and filling in gaps left by the original legislation and the subsequent Q&As. According to the DOL, the average covered employer of less than 500 employees “will likely need to spend one hour to read the rule and determine their responsibilities” under the FFCRA, notwithstanding that the Regulations span more than 120 pages! We think it would take substantially more than an hour, and the purpose of this publication is to help employers quickly understand the FFCRA’s key components, including:

• How and when employers are required to calculate the number of employees for determining whether they are a covered employer;
• What criteria must be met for a “small business” of fewer than fifty employees to claim the “hardship exemption”;
• What documentation an employer may require to determine whether an employee is eligible for EPSLA and/or EFMLEA;
• How leave under the FFCRA interacts with an employer’s other leave policies;
• What it means to “telework” and the flexibility of it, including work at “unconventional times”;
• What differences exist between caring for a child under the age of fifteen and one who is older, and the impact of having two caregivers at home at the same time on a request for leave;
• Whether “healthcare providers” exempted under the FFCRA are defined more broadly than those directly involved in and responding to the COVID-19 pandemic;
• How an employee on leave must be paid, particularly when she does not have regular work hours and is required to utilize any existing accrued paid leave; and,
• What remedies are available for a violation of the FFCRA.

Click here to read more.