Families First Coronavirus Relief Act Updates: A New Effective Date and DOL Posting

On March 18, 2020, President Trump signed into law  the Families First Coronavirus Response Act (the “Act”).  The Act includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, each of which contain paid leave requirements for employers with fewer than 500 employees.  Prior alerts discussing the paid leave benefits available under both portions of the Act can be found here.

On March 24, 2020, the Department of Labor (“DOL”) issued “Questions and Answers” (“Q&A”) relating to certain provisions in the Act that may be found here.  Most significantly, the DOL announced that the Act will go into effect on April 1, 2020, and not on April 2, 2020, as originally contemplated. Other highlights from the Q&A that at least shed light on where the DOL may be heading with its forthcoming regulations and enforcement efforts under the Act include the following:

• The DOL reinforced the idea that multiple companies who meet (and are willing to accept the associated ramifications of) the “joint employer” test under the FLSA or “integrated enterprise” test under the FMLA may avoid statutory coverage under the Act if the aggregated number of employees reaches 500 or more.
• The DOL has indicated that its forthcoming regulations will elaborate on the criteria for small businesses with fewer than 50 employees to apply to determine whether they qualify for a hardship exemption to the Act (while also saying “do not send anything to us”).
• The DOL provided some interim guidance regarding the proper calculation of pay due to full-time and part-time employees, including those with varying schedules, who have not been employed for six months, or who typically receive overtime pay.
• The DOL expressly stated that paid leave granted before April 1, 2020 cannot be counted against the paid leave benefits effective as of April 1, 2020. The DOL importantly did not elaborate whether the use of unpaid leave under the FMLA counts against the period of E-FMLA benefits that must be provided.

Yesterday, on March 25, 2020, the DOL also issued the mandatory posting referenced in the Act, which may be found here. Please note that the content of this posting is potentially misleading, as it states (correctly) that an eligible employee may receive up to $2,000 in the aggregate for leave due to needing to care for a family member or child whose school is closed or because of the unavailability of a paid child care provider AND (confusingly) that the same eligible employee may receive up to twelve weeks of child-care related leave up to $12,000 in the aggregate. Based on the plain language of the Act, the child-care related benefits under both portions of the Act are capped at an aggregate of $12,000 ($2,000 for the first ten days under the Emergency Paid Sick Leave Act and $10,000 for the next ten weeks under the Emergency Family and Medical Leave Expansion Act).  The DOL also noted that, given that many employees are now teleworking and may not have access to a traditional posting, an employer “may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.”

The DOL is still expected to issue regulations under the Act in early April.

If you have any questions about any aspect of the Act or any other of the many rapid developments related to the coronavirus pandemic, please contact a member of the Employment Law Team at AGG.