Update to Employee Sick Leave and Family Medical Leave

Since our last communication regarding the Families First Coronavirus Response Act (“FFCRA”) and its constituent Acts, the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Act, there have been a number of developments which have either modified the terms of the FFCRA or provided clarification as to its implementation.  Below is a summary of such new developments.

• New Effective Date: The Department of Labor has moved the effective date to April 1, 2020 for both the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Act.

• CARES Act amends portions of the FFCRA: The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law on March 27, 2020. The CARES Act’s 880 pages cover a wide range of topics, many of which AWD has or will cover in this email series. A small portion of the CARES Act provided some modifications to the FFCRA, the most relevant portions of which are as follows:
• Advance Payment of Tax Credit Refunds: The CARES Act allows employers who anticipate receiving a refund against the tax credit to receive such refund in advance of actually filing a payroll tax return. The CARES Act states that the IRS will create and provide appropriate forms and instructions for calculating and requesting advances. IRS has compiled its list of resources here: https://www.irs.gov/coronavirus
• Clarification on maximum amount payable: The CARES Act clarifies that the maximum payable amounts under the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Act are maximums per employee (i.e. the $511 per day cap ($5,110) for leave under reasons 1-3 and $200 per day cap ($2,000 aggregate) for leave under reasons 4-6 of the Emergency Paid Sick Leave Act and $200 per day ($10,000 aggregate) for leave under the Emergency Family and Medical Leave Act are the maximum amounts of leave payable per employee).
• Certain rehired employees eligible for Emergency Family and Medical Leave: To be eligible for leave under the Emergency Family and Medical Leave Act, an employee must have been employed for at least 30 calendar days prior to taking qualifying leave. The CARES Act clarifies that this 30 day requirement is met by an employee who was laid off by an employer on or after March 1, 2020, had worked at least 30 days out of the last 60 calendar days prior to the employee’s layoff, and is rehired by that same employer. A rehired employee meeting all those required elements is not required to wait an additional 30 days before becoming eligible for leave under the Emergency Family and Medical Leave Act. (As a reminder, there is no 30 day requirement for taking leave under the Emergency Paid Sick Time Act).  

Department of Labor Guidance

As of this writing (5:00 PM on 3/30/20) the Department of Labor has not issued final regulations addressing the implementation of the Emergency Paid Sick Leave and Emergency Family and Medical Leave Acts. However, the DoL has posted substantial guidance on these Acts, including answers to common questions. They have also posted posters which all employers are required to post where they normally post employee notices. Links to these various DoL resources can be found here: https://www.dol.gov/agencies/whd/pandemic.  

How does the Arizona “Stay-at-Home” executive order affect an employer’s requirements to pay emergency sick or family leave?

Arizona has joined the growing number of states that have issued “stay-at-home” orders, instructing all non-essential services and businesses to either limit or outright suspend on-site operations. Questions have arisen how this order affects the obligations to pay leave under the new Acts. The Department of Labor has answered this question here (see questions 23-27): https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. In short, if an Arizona business is forced to close because of Arizona’s “stay-at-home” order, such a business is not required to provide paid leave under either the Emergency Paid Sick Leave Act or Emergency Family and Medical Leave Act.  

Exemption Guidance

We have received a number of questions concerning the possible exemption for providing child-care related paid sick leave and expanded family and medical leave for business with fewer than 50 employees. As a reminder, this exempts employers from providing paid leave under reason 5 of the Emergency Paid Sick Leave Act (leave to care for a child who is out of school or childcare because of COVID-19) and paid leave under all of the Emergency Family and Medical Leave Act would jeopardize the viability of the business as a going concern. A business hoping to take advantage of this exemption will need to qualify for such exemption based on regulations to be issued by the Department of Labor. As of 5:00 PM on 3/30/2020, the Department of Labor has not issued regulations addressing how a business may elect/qualify for this exemption, but it has indicated that it will issue regulations with specific criteria to elect/qualify for this exemption.

Temporary Period of Non-Enforcement of Violations of the FFCRA

The Department of Labor has provided guidance to its Wage and Hour Division field staff throughout the country stating that until April 17, 2020, enforcement actions should not be brought against employers for violations of the FFCRA if certain conditions are met. An enforcement action will not be brought against an employer who has violated the FFCRA if the employer has acted “reasonably” and “in good faith” and all the following are true:

1. The employer remedies any violations, including making all affected employees whole as soon as practicable.  
2. The violations of the FFCRA were not “willful.” The term willful includes conduct that the employer knew was prohibited or showed reckless disregard for the matter of whether the conduct was prohibited.  
3. The Department of Labor receives written commitment from the employer to comply with the FFCRA in the future.

After April 17, 2020, the Department of Labor will be authorized to fully enforce violations of the FFCRA. Full text of the Department of Labor’s temporary non-enforcement policy can be found here: https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1

Can AWD LAW help me?

AWD LAW is here to answer your questions. This summary is intended to serve as general information for interested persons, but it is not legal advice for any specific situation. AWD LAW attorneys Kate Mahady (KMahady@awdlaw.com) and John Carlson (JCarlson@awdlaw.com) are available to answer fact-specific questions for our clients. Our number is (928) 774-1478.