The U.S. Department of Labor (DOL) has established April 1, 2020, as the effective date of the Families First Coronavirus Response Act (FFCRA). The law stated that it would “take effect not later than 15 days after the date of enactment,” which would mean April 2, 2020, at the latest. Apparently the DOL decided to select April 1, presumably to coincide with the beginning of the calendar quarter. Our summary of the law is available here.
The DOL’s web page, COVID-19 and the American Workplace, provides an ever-expanding array of guidance, including the April 1 effective date. We still expect the DOL to issue regulations implementing the FFCRA, but in the meantime, here are some particularly useful nuggets from the agency’s informal guidance:
Covered employers: The FFCRA applies to employers with fewer than 500 employees. When counting the number of employees, the DOL looks at a snapshot of how many workers you employ as of the date the employee needs leave. All jointly employed workers are counted. For example, if a manufacturing facility employs temporary agency workers, those workers count toward the employment totals of both the manufacturer and the staffing agency. The count is based on the total number of the company’s employees in the U.S.
Intermittent leave: The DOL is now saying that if an employee uses the new emergency paid sick leave (EPSL) for reasons related to COVID-19 illness/exposure of the employee or family member (as opposed to school and day care closures), the leave must be taken in full-day increments unless the employee is teleworking. The idea is that if the employee or family member is sick, the employee should stay off work for the entire day. If the employee wants intermittent leave while teleworking, the DOL says that’s fine as long as the employer agrees, and that the increment may be as small as the parties agree. When the employee needs leave under either EPSL or under the new emergency family and medical leave (EFMLA, also referred to by the DOL as expanded family and medical leave) to care for a child whose school or place of care is unavailable, intermittent leave is available only if both the employer and employee agree. The DOL appears to be treating the time off for school and daycare closures as similar to parental (bonding) leave under the federal Family and Medical Leave Act (FMLA), which also doesn’t allow intermittent leave unless the worker and employer agree.
Layoffs: The DOL confirms, as we previously reported, that the EPSL and EFMLA leaves are only available if an employee has a job but needs time off for a personal reason covered under the FFCRA. If employees are laid off, they aren’t eligible for EPSL or EFMLA until they’re recalled. Instead, they can apply for unemployment benefits during the layoff.
Taking leave before the effective date: The DOL put to bed any rumors that workers could take EPSL or EFMLA leave before the effective date of the law. These new types of leave aren’t available until April 1, 2020.
Continuation of health insurance: The DOL says an employee’s group health insurance continues during the period of EPSL (a maximum of 80 hours for a full-time employee). For EFMLA (which is an additional 10 weeks beyond the EPSL time), the regular FMLA rules on continuation of health insurance apply. In other words, the employee has the right to continue health insurance on the same basis as if the employee had continued to work.
Tips: This isn’t the last we’ll hear from the DOL. The agency is asking for feedback through March 29, 2020, as it works on beefing up its guidance and issuing regulations. The DOL has also announced that it won’t take any enforcement action on the new law through April 17, 2020, as long as employers make good faith efforts to comply. We’ll keep members updated as developments occur.