Department of Labor Issues First Guidance on Implementation of Families First Coronavirus Response Act and Updates to CDC Guidance for Employers
March 24, 2020
Today, March 24, 2020, the Wage and Hour Division of the United States Department of Labor issued its first guidance to help employers and employees understand the new emergency paid sick leave and public health emergency leave that are part of the Families First Coronavirus Response Act (“FFCRA”). Notably, the news release and the Questions and Answers linked to it set the effective date of the FFCRA as April 1, 2020. See https://www.dol.gov/newsroom/releases/whd/whd20200324 and https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
In addition to the guidance in the Questions and Answers, there is a Fact Sheet for Employees and a Fact Sheet for Employers. See https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave; https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave.
Among other things, the Questions and Answers clarify that:
- If an employee is using emergency paid sick leave because the employee is unable to work or telework due to their own illness, local quarantine or isolation order related to COVID-19, for each applicable hour, the employee should be paid the greater of: their regular rate of pay, the federal FLSA minimum wage, or the applicable State or local minimum wage, up to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.
- If the employee is using emergency paid sick leave to care for an individual under local quarantine or isolation order related to COVID-19, or to care for the employee’s child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, the employee should be paid 2/3 of the greater of the amounts above, subject to a maximum of $200 per day, or $2,000 over the entire two week period.
- If taking public health emergency leave, the employee may use emergency paid sick leave for the first ten days of that leave period, or may substitute any accrued vacation leave, personal leave, or medical or sick leave available under their employer’s policy. For the following ten weeks of leave, the employee will be paid an amount no less than 2/3 of their regular rate for the hours they would normally be scheduled to work. The regular rate must be at or above the federal minimum wage, or the applicable state or local minimum wage, and in no event will the employee be entitled to more than $200 per day or $12,000 for the twelve weeks. (The $12,000 includes both 10 days of emergency paid sick leave and 10 weeks of paid public health emergency leave when it is used to care for the employee’s child whose school or place of care is closed or unavailable due to COVID-19 related reasons.)
- When calculating pay due to employees, overtime hours must be included, but pay does not need to include a premium for overtime hours. Further, emergency paid sick leave need only be paid up to a maximum of 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of emergency paid sick leave in the first week and 30 hours of emergency paid sick leave in the second week. The total number of hours paid under the FFCRA for emergency paid sick leave is capped at 80.
- The DOL makes clear that the paid Public Health Emergency leave is available only for leave to care for the employee’s child whose school or place of care is closed, or when the child care provider is unavailable, due to COVID-19 related reasons. Paid leave is not available for other FMLA purposes.
- The employer cannot deny emergency paid sick leave even if the employer already gave an employee paid leave for a reason identified in the emergency paid sick leave portion of the FFCRA prior to the FFCRA going into effect. The DOL clarifies that the FFCRA imposes a new paid sick leave requirement on employers that is effective beginning on April 1, 2020.
In other recent developments, the CDC updated its Interim Guidance for Businesses and Employers on March 21, 2020. See https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. This Guidance includes updated information on how to assess when it may be safe for employees to return to work .i.e. until the criteria for discontinuation of home isolation has been met, and in consultation with health care providers and state and local public health departments, employees should not return to work. See https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home-patients.html
For further guidance about specific workplace issues, please contact one of our employment attorneys.
|The contents of this newsletter are intended for general informational purposes only and should not be construed as legal advice or a legal opinion. You are advised to consult an attorney about any specific legal question.|