What Me Worry -- New WHD Guidance Issued on Coronavirus Leave Requirements

“It’s difficult to make predictions, especially with regards to the future.”

-Old Proverb, The Most Important Thing

Where this all leads, I don’t know. But, the U.S. Department of Labor (“DOL”) Wage and Hour Division (“WHD”) issued new guidance and posting requirements for the coronavirus leave requirement on March 26, 2020. Earlier this week, Congress enacted legislation that requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The requirements of this legislation, the Families First Coronavirus Response Act (“FFCRA” or “Act”), go into effect next Wednesday, April 1, 2020 at the time the rest of the Act goes live. Enforcement activity will be stayed until April 17, 2020 meaning that employers will not face penalties for the first half of April so long as they are implementing the leave requirement in good faith.

Because many employees are working virtually, WHD is advising that employers should fulfill the posting requirement by sending the posters out via email and placing them on company websites in addition to the usual requirement to post in break rooms, etc. See https://www.dol.gov/agencies/whd/pandemic where the posters, guidance and other info is available. The WHD guidance has four components:

Thus, your friendly DOL is hard at work to keep you on the straight and narrow path of compliance with the leave laws. The FFCRA will go into effect and apply through December 31, 2020. It is time to familiarize yourself with the requirements.  As noted in WHD’s fact sheets:

Generally, the Act provides that covered employers must provide to all employees:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

A covered employer must further provide to employees that it has employed for at least 30 days:

  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Covered Employers:

The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision. 

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Qualifying Reasons for Leave:

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

1.      is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

2.      has been advised by a health care provider to self-quarantine related to COVID-19;

3.      is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

4.      is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

5.      is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or

6.      is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Duration of Leave:

For reasons (1)-(4) and (6): A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5): A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay:

For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).

Tax Credits: Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website.

Employer Notice: Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements.

Prohibitions: Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.

Penalties and Enforcement: Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217. Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act. The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.  For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future. 

Id. (footnotes omitted).

And, if you want more information about the tax credit for the leave benefit, look to the Internal Revenue Service and not WHD for guidance! Good luck.

 

By Daniel Abrahams, Employment Law, Wage & HourDaniel Abrahams