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Latest DOL FFCRA Guidance Critical for Employer Strategies

Employers Should Form Cohesive Strategy Using New FFCRA, DOL Guidance and CARES Act

During the COVID-19 national emergency, employers are faced with difficult choices, incorporating critical strategies and significant new requirements under the Families First Coronavirus Response Act (“FFCRA”) and the Coronavirus Aid, Relief and Economic Security (“CARES”) Act. Adding to the complexity, we are still expecting the Department of Labor (“DOL”) to issue formal regulations interpreting these new laws.  Gathered here are links to our overviews of these critical new statutes and to the information provided by the DOL so far, including the DOL’s latest FFCRA guidance just issued.

FFCRA – Expanded Leave and Sick Pay Provisions

It has not even been two weeks since President Trump signed the FFCRA into law on March 18, 2020 as part of the country’s initial response to the COVID-19 pandemic.  The law overhauls leave requirements for employers – amending the Family and Medical Leave Act (FMLA) to (generally stated) add new Public Health Emergency Leave (essentially for child care) and enacting new Emergency Paid Sick Leave for reasons related to COVID-19 exposure, including child care.  The law also reimburses employers with payroll tax credits to fund these new paid leaves.  The U.S. Department of Labor (“DOL”) has stated the law will be effective APRIL 1, 2020 and will sunset on December 31, 2020.

Just a week later, on March 25, 2020, the DOL issued its first round of guidance for the FFCRA in a Q&A format.  The same day, KRCL posted its Update on the FFCRA here providing the first fourteen Q&A for convenience and a link to the DOL’s Q&A guidance for future reference.  KRCL also provided the DOL’s Model Notice employers must post, with the Q&A guidance specific to the Model Notice. Employers should post the Notice by April 1, 2020, when the Act takes effect.

CARES Act Could Provide Significant Help

Meanwhile, Congress has taken the next step to respond to the COVID-19 pandemic.  Just Friday, March 27, 2020, President Trump signed into law the new CARES Act, providing $2.2 trillion of aid to businesses and individuals.  To address this expansive new legislation, KRCL formed the KRCL CARES Task Force to analyze the Act and provide guidance to clients. The Act is an important lifeline for businesses -- especially small businesses -- who have been severely impacted by the COVID-19 pandemic.  Significantly, the Act provides access to loans, and forgiveness of those loans, where used to cover costs to keep the business open and the business maintains or restores prior employee and salary levels.

The DOL Continues to Provide FFCRA Guidance

Although the brand-new CARES Act is itself a huge boost for business, employers should not overlook the FFCRA or the DOL’s Guidance interpreting it in forming and reviewing their strategies. The DOL has been busy adding to its FFCRA Q&A guidance, most recently on March 28, 2020.  Although the additional Q&A are located in the same place as before, here is the link again for convenience. NOTE: The DOL’s guidance is now expanded to 59 questions and growing.  As we continue to wait for more formal regulations, Employers may find answers in the guidance to many of their questions raised by the new FFCRA even as they also analyze strategies to take advantage of the new CARES Act, too.

One significant issue addressed in the new guidance is the availability of intermittent paid sick or emergency family leave provided by the FFCRA.  Although intermittent leave is generally available as under the FMLA, the employer and employee must both agree to the intermittent leave.  And intermittent leave is available only if the employee is teleworking.  If the employee must work onsite, intermittent leave is not available to the extent the employee has been exposed to COVID-19, since the employee should not expose others onsite to COVID-19.  Of course, tracking intermittent leave is always challenging for employers.

The guidance also makes clear that, unless the employee is qualified for intermittent leave as a teleworker, the employee may only take FFCRA leave once and must use it all at once.  Based on this guidance, employees should not be able to use multiple leaves, or partial leave, for multiple different qualifying FFCRA reasons.

Critically, the guidance also confirms that an employer is not responsible to provide paid leave under the FFCRA if there is simply no work available to perform (e.g., for a temporary shutdown) or if the employees are furloughed – not just when employees are terminated.  Meanwhile, the CARES Act helps offset the wages employees would lose by providing increased unemployment benefits ($600 per week for an additional four months) that will help replace those lost wages, even totally replacing wages for many lower wage earners.

Let KRCL Help

Employers should review the FFCRA, the DOL’s Guidance, and the CARES Act together to review their strategies for dealing with the impact of the COVID-19 pandemic and the various government orders issued in response. With the lifeline provided by the new CARES Act, and payroll credits to fund paid sick and family leave, employers may find they can continue to operate and retain employees even in the face of restrictions imposed by the response to COVID-19. As a result, employers should also reconsider any prior strategies to shut down totally or lay off employees. Let KRCL help you put together a cohesive strategy that could save your business.

With all of these options now available in these trying times, the KRCL Employment Group and the KRCL CARES Task Force are here to help you and your business. The Employment Law Practice Group Co-chairs are Andrea “AJ”Johnson and Doug Bracken.