March 25, 2020

We are continuing to monitor developments of special importance to our clients that are occurring at the county, state and federal level.  Many businesses, large and small, have important questions about compliance with the Families First Coronavirus Response Act (FFCRA). 

Updated Resources Regarding the Families First Coronavirus Response Act

Today, the Department of Labor issued the required workplace posters, fact sheets and FAQ’s regarding the emergency paid sick leave and FMLA expansion benefits provided by the Families First Coronavirus Response Act.  Some of the important takeaways are:

  • The Families First Coronavirus Response Act is effective April 1, 2020.
  • The Department of Labor will not bring enforcement actions against any employer for violations of the Act that occurred between March 18 and April 17, 2020 provided the employer has made reasonable, good faith efforts to comply with the Act. After April 17 the Department will fully enforce violations of the Act.
  • The Act’s requirements to provide emergency sick leave and expanded FMLA apply only to leave taken by current employees between April 1 and December 31, 2020.
  • Although the Department of Labor states that details are forthcoming on small business exemptions from the paid leave requirements, it suggests that employers with fewer than 50 employees who feel their business would be jeopardized by providing the paid leave document its reasons for being exempt.

For more detail and to print the required posters see https://www.dol.gov/agencies/whd/pandemic.

March 29, 2020 Families First Coronavirus Response Act (FFCRA) National Online Dialogue- Your Opportunity to Provide Regulatory Input

The U.S. Department of Labor will be hosting a national online dialogue to provide employers and employees with an opportunity to offer their perspective as the Department of Labor develops compliance assistance materials and outreach strategies related to the implementation of the FFCRA.

According to the Department of Labor, the ideas and comments gathered from this dialogue will inform compliance assistance guidance, resources, and tools, as well as outreach approaches that assist employers and employees in understanding their responsibilities and rights under the FFCRA. The DOL is requesting input by March 29, 2020. Anybody who is interested can participate online at https://ffcra.ideascale.com from March 23 through March 29, 2020 or can join a Twitter chat hosted by @ePolicyWorks on March 25, 2020 at 2 p.m. using the hashtag #EPWChat.

U.S. Department of the Treasury, IRS and The U.S. Department Of Labor Provide Information on Coronavirus-Related Paid Leave For Workers And Tax Credits For Small And Midsize Businesses

The Act provides a tax credit for employers providing paid leave benefits in compliance with the Families First Coronavirus Response Act. Eligible employers may receive a refundable sick leave credit for emergency sick leave paid to employees at the employee’s regular rate of pay, up to $511 per day and $5,110 in the aggregate, for a total of 10 days.  For an employee who is caring for someone with Coronavirus, or is caring for a child because the child’s school or child care facility is closed, or the child care provider is unavailable due to the Coronavirus, eligible employers may claim a credit for two-thirds of the employee’s regular rate of pay, up to $200 per day and $2,000 in the aggregate, for up to 10 days. Eligible employers are entitled to an additional tax credit determined based on costs to maintain health insurance coverage for the eligible employee during the leave period.

In addition to the sick leave credit, for an employee who is unable to work because of a need to care for a child whose school or child-care facility is closed or whose child care provider is unavailable due to the Coronavirus, eligible employers may receive a refundable child care leave credit. This credit is equal to two-thirds of the employee’s regular pay, capped at $200 per day or $10,000 in the aggregate. Up to 10 weeks of qualifying leave can be counted towards the child-care leave credit. Eligible employers are entitled to an additional tax credit determined based on costs to maintain health insurance coverage for the eligible employee during the leave period.

Examples of the credit are included in the guidance at https://www.dol.gov/newsroom/releases/osec/osec20200320.

Warn Act Guidance Issued

On March 17, 2020, Governor Gavin Newsom issued Executive Order N-31-20 (PDF), which addressed the California Worker Adjustment and Retraining Notification (WARN) Act (Lab. Code §§ 1400, et seq.) and temporarily suspended the 60-day notice requirement for mass layoffs, cessation or substantial cessation of business operations or relocation of a business. The Department of Industrial Relations, Division of Labor Standards Enforcement, and the Employment Development Department (EDD) issued guidance regarding the Order’s conditional suspension of the California WARN Act at https://www.edd.ca.gov/about_edd/coronavirus-2019/faqs/WARN.htm

The Governor’s order does not suspend the California WARN Act in its entirety, nor does it suspend the law for all covered employers. The order only suspends the California WARN Act’s 60-day notice requirement for those employers that satisfy the Order’s specific conditions and provide a written notice that complies with the order.