We have previously written about the US Department of Labor issuing a Question & Answers webpage, and subsequently updated it, to address numerous issues arising out of the passage of the Families First Coronavirus Response Act (“FFCRA”). (Click here, here and here.) On April 6, 2020, the DOL again updated the “Questions and Answers” webpage, adding 9 new questions and answers (##80-88) that largely clarify prior guidance from the Department. Here is a summary of the issues addressed by the DOL’s fourth update to the Q&A page:

For Employers:

  • Clarifying the manner for calculating the number of hours of paid sick leave and expanded family and medical leave due an employee who works irregular hours. (##80-81)
  • Providing a detailed explanation as to how to compute an employee’s average rate of pay for purposes of FFCRA, including those employees on a fixed salary each workweek. (##82-83)
  • Allowing employers to use rounding when computing the number of hours of sick leave due provided that employers do so consistently among all employees and in accordance with typical time increments (i.e. if employer general uses quarter-hour increments, employer may use quarter-hour increments for purposes of rounding here). (#84).
  • Stating that an employer must only use one six-month period of time (calculated from when the employee first takes FFCRA leave) for determining the regular rate of pay rather than doing a six-month calculation each time an employee takes FFCRA leave if it is intermittent. (#85)
  • Explaining the interplay between paid sick leave under the FFCRA with employer-provided leave plans, specifically whether an employer can require an employee to take employer-provided leave before taking FFCRA leave. (#86)

For Employees:

  • Clarifies that a “shelter in place” or “stay home” order from an federal, state or local agencies qualifies as a quarantine or isolation order for purposes of FFCRA leave, provided the employer has work for the employee and the “shelter in place” or “stay home” order prevents the employee from performing the work, either in person or via telework. (#87)
  • Explains that an employee is entitled to the full amount of unpaid leave due to them under the FFCRA, instead of just the federal minimum wage of $7.25 per hour, if the Department is required to bring an enforcement action on their behalf against their employer for violating the FFCRA. (#88)

California employers should continue to monitor our blog for future updates concerning the FFCRA and other employment developments as a result of the COVID-19 pandemic. We also advise employers to seek legal advice to determine whether the FFCRA applies to their business, and if so, what steps to take to ensure compliance.

 

As previously advised, the US Department of Labor has issued a Question & Answers webpage, and subsequently updated it, to address numerous issues arising out of the passage of the Families First Coronavirus Response Act (“FFCRA”. (Click here and here.) The DOL updated the “Questions and Answers” webpage again today, adding 20 new questions and answers (##60-79). These updated Questions and Answers primarily address issues for employees regarding FFCRA leave but include some questions directed towards employers such as computing leave pay for seasonal workers with irregular schedules, employee counts for staffing agencies and the DOL 30-day stay of enforcement actions for FFCRA violations.

Here is a summary of the issues addressed by the DOL’s third update to the Q&A page:

For Employers:

  • For staffing companies attempting to calculate the number of employees for determining whether they are subject to the FFCRA, they are to include all workers they consider to be “employees,” whether full-time or part-time, including those workers for whom they are considered a “joint employer.” (#74; see also #2.)
  • Provides a four-step process by which to calculate FFCRA leave pay for those seasonal employees with an irregular schedule, and describes how employee is entitled to: (#75)
    • Full daily paid leave amount if they are unable to work because they are subject to a quarantine isolation order, have been advised by a doctor to self-quarantine; or is experiencing symptoms of COVID-19 and is seeking medical diagnosis;
    • Two-thirds of the base daily paid leave amount if reasons for leave is:
      • (1) To care for an individual subject to a self-quarantine order or has been advised to self-quarantine by a medical provider,
      • (2) To care for a child whose school or care provider is closed due to COVID-19.
    • Clarifies that a seasonal employee is not entitled to FFCRA leave pay if they are not scheduled to work, i.e. if it is the off-season.
  • Reiterates that DOL will not bring any enforcement actions against employers for violations of the FFCRA until at least April 17, 2020, provided the employer has made “reasonable, good faith efforts” to comply with the FFCRA (but notes that the DOL reserves the right to “retroactively enforce violations back until the effective date of April 1, 2020, if employers have not remedied the violations.” (##78-79.)

For Employees:

  • Describes eligibility for leave as a result of quarantine or isolation orders as well as deciding to self-quarantine while seeking a medical diagnosis. (##60-62.)
  • Clarifies FFCRA leave eligibility for an employee to care for someone else is limited to an immediate family member. (## 63-66.)
  • Defines “place of care” and “child care provider.” (##67-68.)
  • Explains that only one parent/guardian is eligible for leave to take care of a child whose school or child care has closed, i.e. leave is not available to an employee if the other parents/guardian is available to provide care to the child. (#69.)
  • Clarifies that a school providing “remote learning” to a child at home is considered “closed” for purposes of the FFCRA since the physical location is now closed. (#70.)
  • Provides that in certain circumstances, an employee may take up to two weeks of paid sick leave to care for a child other than their own child if that individual is subject to a quarantine order and has a need for the employee to care for him or her; however, an employee is not entitled to expanded family and medical leave except to care for the employee’s own “son or daughter.” (##71-72; see also #40.)
  • Notes that the DOL is still waiting for the Department of Health & Human Services to define “substantially similar condition” that may be eligible for FFCRA leave. (#73.)
  • Clarifies that employee is not entitled to FFCRA leave if already receiving workers’ compensation or temporary disability benefits. (#76.)
  • Describes scenarios in which an employee already on an employer-approved leave of absence may be eligible for FFCRA leave. (#77.)

California employers should continue to monitor our blog for future updates concerning the FFCRA and other employment developments as a result of the COVID-19 pandemic. We also advise employers to seek legal advice to determine whether the FFCRA applies to their business, and if so, what steps to take to ensure compliance.

Earlier this week, the U.S. Department of Labor announced that it would be posting an informational webinar regarding compliance issues with the recently-enacted Families First Coronavirus Response Act (“FFCRA”). That webinar, which provides information regarding the FFCRA for both employers and employees went live today and can be accessed at:  https://dolwhd.cosocloud.com/pawkgwfawza0/?proto=true. The DOL’s Wage & Hour Division also distributed Power Point slides to accompany the webinar, which can be accessed here.

California employers should continue to monitor our blog for future updates concerning the FFCRA and other employment developments as a result of the COVID-19 pandemic. We also remind employers that they should seek legal advice to determine whether the FFCRA applies to their business, and if so, what steps to take to ensure compliance.

 

On March 31, 2020, the IRS issued 66 FAQs providing guidance to employers in connection with the payment of, and tax credits for, emergency paid sick leave (E-PSL) and emergency FMLA leave (E-FMLA) under the Families First Coronavirus Response Act (“FFCRA”).  Among other things, the FAQs answered a very important question that the DOL didn’t (instead, in its FAQ 15, the DOL essentially deferred to the IRS).  The important question is: what documentation or information can employers require employees to submit to support their request for E-PSL or E-FMLA?

IRS FAQ No. 44 states expressly:

  1. What information should an Eligible Employer receive from an employee and maintain to substantiate eligibility for the sick leave or family leave credits?

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

The IRS FAQs provide other useful information about determining the amount of the tax credit for qualified sick leave wages; determining the amount of allocable qualified health plan expenses; how to claim the credits; periods of time for which credits are available; and more.  You can read the full IRS FAQs here.

The Labor and Employment attorneys as Weintraub Tobin continue to wish you and your families good health during these difficult times.  Please reach out to any of us if we can assist you with your employment law needs.

We have been keeping you informed of recent actions by the US Department of Labor to advise employers of their obligations under the recently enacted Families First Coronavirus Response Act (“FFCRA”). This has included the DOL’s creation of a “Questions and Answers” webpage for both employers and employees. (Click here, here and here.) On April 1, 2020, the DOL announced the issuance of its Temporary Rules regarding implementation of the FFCRA and what employers who are subject to it must do to ensure compliance. (Click here for DOL Press Release.)

The 124-page Temporary Rule (available here is essentially the implementing regulations that were addressed in general terms by the DOL on its Q&A webpage concerning the FFCRA. The DOL also detailed its reasoning in adopting the limited “small business” exception to FFCRA compliance. It explained that it was trying to balance the competing interests in making sure that FFCRA leave was as widely-available as possible for small business employees while trying to prevent such leave from having little to no value if the company went under so that its employees had no leave entitlement and/or no jobs to which to return.

Importantly for employers, the DOL’s Wage & Hour Division will be posting a pre-recorded webinar on Friday, April 3, 2020, to provide further details concerning the FFCRA, including informing employers how to comply their FFCRA obligations for those subject to it. The webinar should be accessible at the following page on Friday:  www.dol.gov/agencies/whd/pandemic

California employers should continue to monitor our blog for future updates concerning the FFCRA and other employment developments as a result of the COVID-19 pandemic. We also remind employers that they should seek legal advice to determine whether the FFCRA applies to their business, and if so, what steps to take to ensure compliance.