Hunton Employment & Labor Perspectives

On April 10, the Department of Labor published corrections to its regulation on the Families First Coronavirus Response Act and fixed an internal inconsistency regarding concurrent use of employer-provided paid time off and paid expanded family medical leave under the Act.

We previously covered the initial DOL rule on Families First here.  The Families First Act provides up to 12 weeks of paid leave for employees of small to mid-sized businesses for certain coronavirus-related reasons.

The Department of Labor issued its Final Rule regarding implementation of the Families First Coronavirus Response Act on April 1, but it does not resolve all outstanding questions for employers.

The Final Rule provides points of clarity on issues such as the definitions of health care provider and emergency responders, the small business exemption to the Act, and the effect of state or local stay-at-home orders on an employee’s right to take leave.  But it also contains some apparent internal inconsistencies, including whether employers can require employees to use employer-provided paid time off and partially paid Emergency Family and Medical Leave Expansion Act leave (“Emergency Family Medical Leave”) concurrently.

On March 27, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES”), an unprecedented $2 trillion economic rescue plan in response to the COVID-19 pandemic.  Our firm has previously summarized the CARES Act’s tax and health and retirement benefits provisions here and here.  Below, we summarize additional aspects of the Act that impact the workplace.  It is important to note that there are a number of open questions presented by this legislation, which could impact employers’ structure for layoffs, furloughs, and pay reductions.  We anticipate the various governmental agencies charged with implementing the CARES Act will be issuing guidance soon, and we will provide updates as appropriate.

The Families First Coronavirus Response Act (the “Act”) is set to take effect on April 1, 2020.  As we previously reported, the Act requires that employers with fewer than 500 employees provide two new forms of paid leave.  First, covered employers must provide up to 80 hours of emergency paid sick leave to employees who are unable to work because of certain COVID-19 related reasons.  Second, covered employers must provide up to 10 weeks of paid FMLA leave (in addition to the 80 hours of emergency paid sick leave) to eligible employees who are unable to work or telework because they need to care for a child whose school or daycare is closed due to the COVID-19 pandemic.

The Department of Labor released posters that employers with fewer than 500 employees must use to meet the notice posting requirements of the Families First Coronavirus Response Act.

The DOL issued two posters, one for federal employers, available here and one for all other covered employers, available here.  The DOL also provided a questions and answers page regarding the notice posting requirement here.

The Department of Labor (“DOL”) released guidance Tuesday regarding the implementation of the Families First Coronavirus Response Act, including details on how employers can determine whether they are covered by the Act.

500 Employee Threshold

One of the most common questions among employers regarding the Families First Act, which Congress passed last week to provide up to 12 weeks of paid leave for coronavirus-related reasons, involved how to count employees towards the 500 employee threshold for coverage under the law.  If an employer has 500 or more employees, then it is not covered by the law.  The DOL provided three key pieces of guidance to help employers determine whether they are covered.

The United States Senate today passed the Families First Coronavirus Response Act and sent it to President Trump’s desk.  The President is expected to sign the bill into law this week.

The bill, which provides for paid sick leave and expanded family leave for certain employees for coronavirus-related reasons, passed the Senate without substantive changes.  The House initially passed the bill on Friday night, but made technical corrections to it late Monday.

For full details on how the legislation may affect employers, see our previous coverage of the bill here and here.