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DOL Issues Temporary Regulations for the Families First Coronavirus Response Act

On April 1, the day the Families First Coronavirus Response Act (“FFCRA” or the “Act”) went into effect, the U.S. Department of Labor (“DOL”) issued temporary regulations for the Act. The regulations answer a number of questions regarding the interpretation of the FFCRA.

Of particular note, the regulations interpret “quarantine or isolation orders” to include “a broad range of governmental orders, including orders that advise some or all citizens to shelter in place, stay at home, quarantine, or otherwise restrict their own mobility.” That being said, if a business closes because of a shelter in place order, either because its customers are required to stay at home or because the order forced the business to close, and the employee cannot telework, the employee is not eligible for paid sick leave under the Act (because the reason the employee cannot work is because the business was subject to the order, not because the employee was subject to the order).

The regulations also provide clarifications and interpretations of the Act, including:

  • The definition of “son or daughter” under both the paid sick leave and expanded FMLA leave includes adult children who are incapable of self-care due to a mental or physical disability. (This represents a change of the language of the FFCRA to effectuate consistency between the provisions.)
  • Employers are not required to compensate for unreported hours worked while teleworking unless they knew or should have known the hours were worked.
  • FFCRA sick leave may be taken if the employee is advised by a health care provider to self-quarantine because the employee has, may have, or is “particularly vulnerable” to COVID-19.
  • If the employee is taking FFCRA sick leave because the employee is experiencing symptoms and awaiting a diagnosis, the leave may be taken only for the time spent making, waiting for, and attending the appointment for diagnosis. If the employee is unable to telework, the time may also be taken while awaiting results.
  • The unpaid portion of the expanded FMLA leave applies to two weeks, not 10 days.
  • Employees are only qualified to take FFCRA leave to care for a child whose school or place of care has closed, or whose childcare provider is unavailable, if there is no other suitable person available to care for the child.
  • Intermittent leave may be agreed to by the employee and employer, including the increments of time the leave may be taken. Intermittent leave is available for all qualifying sick leave and expanded FMLA purposes if an employee is teleworking. If an employee is working at the worksite, intermittent leave may only be agreed to if the leave is to care for a child whose school or childcare is unavailable.
  • Employees must provide their employer documentation in support of the need for FFCRA leave, including a signed statement with the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. The employee must provide additional documentation depending on the qualifying reason for leave:
    • If based on an quarantine or isolation order, the employee must provide the name of the government entity that issued the order.
    • If based on a health care provider’s advice for the employee or a family member to self-quarantine, the employee must provide the name of the health care provider.
    • If based on caring for a child without school or childcare, the employee must provide:
      • The name of the child being cared for
      • The name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons
      • A statement representing that no other suitable person is available to care for the child during the period of requested leave

For additional legal information regarding COVID-19, please visit our COVID-19 Resources website.

Hoge Fenton’s Employment Law team is here to provide you with additional support throughout the COVID-19 pandemic. Please feel free to contact any of us below.

Chair & Shareholder
+1.408.947.2456
Shareholder
+1.408.947.2435
Attorney
+1.408.947.2457

This information is provided as an educational service by Hoge Fenton for clients and friends of the firm. This communique is an overview only, and should not be construed as legal advice or advice to take any specific action. Please be sure to consult a knowledgeable professional with assistance with your particular legal issue. © 2020 Hoge Fenton


More DOL Guidance for Employers Regarding FFCRA Paid Leave Benefits for COVID-19

As described in Hoge Fenton’s recent article and webinar, Congress has created two new forms of paid leave benefits that will go into effect on April 1, 2020 for employees who need time off for qualifying reasons due to COVID-19. The U.S. Department of Labor has now issued its third round of guidance on the new law, including the much-anticipated small employer exemption (see the question and answer below):

When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?

An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

The FAQ also provides additional guidance regarding:

  • Exemptions for healthcare providers and emergency responders
  • Definitions, including “employee,” “son or daughter,” and “health care provider” for purposes of determining individuals whose advice to self-quarantine can be relied upon for paid sick leave
  • Confirming that the employee count for purposes of determining employer eligibility is determined on the day the employee’s leave would start
  • Confirming that expanded FMLA leave does not entitle an employee to take more than 12 workweeks of FMLA leave within a 12-month period
  • Reinstatement rights
  • Rights of public sector employees
  • Documentation employers should maintain to see FFCRA refundable tax credits
  • Advice to employees regarding enforcement measures

For additional legal information regarding COVID-19, please visit our COVID-19 Resources website .

Hoge Fenton’s Employment Law team is here to provide you with additional support throughout the COVID-19 pandemic. Please feel free to contact any of us below.

Chair & Shareholder
+1.408.947.2456
Shareholder
+1.408.947.2435
Attorney
+1.408.947.2457

This information is provided as an educational service by Hoge Fenton for clients and friends of the firm. This communique is an overview only, and should not be construed as legal advice or advice to take any specific action. Please be sure to consult a knowledgeable professional with assistance with your particular legal issue. © 2020 Hoge Fenton


COVID-19 Coping Strategies and Insights for Small & Medium-Sized Businesses

COVID-19 poses evolving challenges for all employers, especially start-ups, small, and medium-sized businesses so vital to our Tri-Valley ecosystem. We have assembled a panel of our trusted regional advisors to provide guidance and answer your questions. This complementary webinar is presented by Hoge Fenton and Sensiba San Filippo, in partnership with iGATE and Innovation Tri-Valley Leadership Group.

Tri-Valley advisors will take your questions and address urgent issues including:

What are the best strategies for helping my business survive a big pause in revenue while treating my employees well, especially the ones we might have to let go?

How can I take advantage of unemployment benefits and other government programs?

Could we restructure our small businesses to make sure employees have unemployment benefits if we have to lay people off?

Are options like moving to an employee-owned business a bad idea because it removes benefits for the employees?

Are there creative business solutions to keep our talent even if business drops off?

Please share this webinar information with any business leaders who may find this information helpful.

For more information please call:
Lynn Naylor
Innovation Tri-Valley Leadership Group
925.989.0188

Meet our Trusted Tri-Valley Advisors:

Speaker
EMP Law Attorney
+1.408.947.2435
Moderator
Executive Director
+1.925.231.2333
Speaker
Corporate Attorney
+1.925.460.3367
Speaker
Managing Partner
+1.925.271.8700

Register here

Please note the webinar has capacity of 500 participants


This information is provided as an educational service by Hoge Fenton for clients and friends of the firm. This communique is an overview only, and should not be construed as legal advice or advice to take any specific action. Please be sure to consult a knowledgeable professional with assistance with your particular legal issue. © 2020 Hoge Fenton


DOL Issues Second Round of Guidance for Employers Regarding the Families First Coronavirus Response Act

As described in Hoge Fenton’s recent article and webinar, Congress has created two new forms of paid leave benefits that will go into effect on April 1, 2020 for employees who need time off for qualifying reasons due to COVID-19. The U.S. Department of Labor has now issued further guidance on the new law, including:

  • Intermittent use of FFCRA paid leave
  • Confirming that “shelter in place” orders are not a qualifying reason to use FFCRA paid leave
  • Documentation employers should obtain from employees in order to secure tax credits when employees use FFCRA leave
  • Calculating “regular rate of pay” for employees with fluctuating compensation
  • Employees’ ineligibility to use FFCRA paid leave during office closures or furloughs, or for reduced hours
  • Employers ability to allow employees to coordinate other paid leave benefits with FFCRA paid leave in order to receive full pay while on FFCRA leave

Click here to see the DOL’s full list of FAQs and guidance. The DOL has also issued a model notice that employers are required to post, along with FAQs regarding the posting requirements.

For additional legal information regarding COVID-19, please visit our COVID-19 Resources website .

Hoge Fenton’s Employment Law team is here to provide you with additional support throughout the COVID-19 pandemic. Please feel free to contact any of us below.

Chair & Shareholder
+1.408.947.2456
Shareholder
+1.408.947.2435
Attorney
+1.408.947.2457

This information is provided as an educational service by Hoge Fenton for clients and friends of the firm. This communique is an overview only, and should not be construed as legal advice or advice to take any specific action. Please be sure to consult a knowledgeable professional with assistance with your particular legal issue. © 2020 Hoge Fenton


New U.S. DOL Guidance for Employers Regarding the Families First Coronavirus Response Act, Which Will Go Into Effect April 1, 2020

As discussed in Hoge Fenton’s article last Thursday, March 20th (click here) and webinar last Friday, March 21 st (click here), Congress has created two new forms of paid leave benefits for employees who need time off for qualifying reasons due to COVID-19. The U.S. Department of Labor has now issued clarifications and guidance on the new law, and further guidance is expected in the coming days.

Click here to see the full list of FAQs and the DOL’s expanded guidance. The DOL has also issued its FFCRA model notice that employers are required to post, along with FAQs regarding the posting requirements.

Here is an abbreviated summary of a few of the questions that have been answered:

What is the effective date of the Families First Coronavirus Response Act (FFCRA)?

The FFCRA will become effective on April 1, 2020, and will apply to leaves taken between April 1, 2020, and December 31, 2020.

How do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?

You have fewer than 500 employees if, at the time the employee takes the leave, you employ fewer than 500 full-time and part-time employees within the U.S., including employees on leave, temps who are jointly employed by you and another employer (regardless of whether they are on another employer’s payroll, so including temps through an agency), and day laborers supplied by a temp agency. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers pursuant to the “integrated employer test” under the FLSA.

If I have fewer than 50 employees and complying with the FFCRA would jeopardize the viability of my business, how do I take advantage of the small business exemption?

For now, you should document why your business meets the criteria set forth by the Department of Labor, which will be addressed in more detail in forthcoming regulations. In the meantime, you should not send any materials to the Department of Labor when seeking a small business exemption.

When calculating pay due to employees, must overtime hours be included?

Yes. The Emergency FMLA Expansion Act requires you to pay for hours the employee would have been normally scheduled to work even if that’s more than 40 hours in a week. However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80. Importantly, while all overtime hours must be counted, the pay does not need to include a premium for overtime hours.

Again, please note that this is a summary only. The DOL’s FAQs page answers additional questions and expands on the information provided above.

Hoge Fenton’s Employment Law team is here to provide you with additional support throughout the COVID-19 pandemic. Please feel free to contact any of us below.

Chair & Shareholder
+1.408.947.2456
Shareholder
+1.408.947.2435
Attorney
+1.408.947.2457

This information is provided as an educational service by Hoge Fenton for clients and friends of the firm. This communique is an overview only, and should not be construed as legal advice or advice to take any specific action. Please be sure to consult a knowledgeable professional with assistance with your particular legal issue. © 2020 Hoge Fenton


March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”), which will go into effect within the next 14 days. Among other provisions pertaining to food assistance and COVID-19 testing, the FFCRA creates two new forms of paid leave benefits for employees impacted by the COVID-19 pandemic: 1) emergency paid sick leave, and 2) expansion of the Family Medical Leave Act.

All employers with fewer than 500 employees will be required to provide and pay for the cost of these benefits, and employers will be reimbursed through tax credits. Employers’ obligations will be as follows:

Paid Sick Leave

Employers must provide all employees (regardless of tenure) with up to 10 days of paid sick leave if they are unable to work or telework for any of the following reasons:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. The employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is under a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine;
  5. The employee is caring for a child whose school has been closed, or whose child provider is unavailable, due to COVID-19 precautions;
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

This leave entitlement is in addition to any existing paid leave policies employers have in place, and employees are entitled to use FFCRA paid sick leave before using any other paid leave (e.g., vacation, PTO, California paid sick time).

If an employee uses COVID-19 paid sick leave for the first three reasons identified above, the employee must be paid their regular rate of pay, up to a maximum of $511 per day or $5,110 in the aggregate. If an employee uses COVID-19 paid sick leave for reasons 4, 5, or 6 above, they must be paid at least 2/3 of their regular rate of pay, up to a maximum of $200 per day or $2,000 in the aggregate.

The Secretary of Labor has the authority to issue regulations exempting small businesses with fewer than 50 employees when the imposition would jeopardize the viability of the business as a going concern, but no such exemption has been issued as of yet. Employers of health care providers and emergency responders are permitted to exclude employees from this law.

FFCRA paid sick leave is set to expire on December 31, 2020, and unused paid sick leave will not carry over from year to year, nor be paid out upon termination of employment.

The Secretary of Labor is tasked with publishing a model notice regarding this temporary paid sick leave law within 7 days of the FFCRA being enacted, which employers will be required to post in the workplace.

Expansion of Family Medical Leave Act

Also through December 31, 2020, the Family and Medical Leave Act (“FMLA”) will be temporary expanded to allow employees leave of up to 12 weeks to be used for a “qualifying need” related to an emergency with respect to COVID-19, as declared by federal, state, or local authorities.

A “qualifying need” occurs when employees are unable to work or telework due to the need to care for their child whose school has been closed, or whose child provider is unavailable, due to COVID-19 concerns. Employees are eligible for the expanded FMLA leave if they have been employed for at least 30 calendar days.

FMLA leave is generally unpaid. If an employee takes leave under this temporary provision, however, the first 2 weeks of leave may be unpaid, and the employer must provide paid leave for up to 10 weeks thereafter. An employee may (but cannot be required to) use accrued vacation or sick leave during the initial unpaid two weeks, and thereafter, must be paid at least 2/3 of the employee’s regular rate of pay, up to a maximum of $200 per day or $10,000 in the aggregate.

Employees are entitled to reinstatement to the same or equivalent position upon exhausting their FMLA leave under this provision, except no reinstatement is required if the employer has fewer than 25 employees, and the following conditions are met (1) the employee’s no longer exists due to economic conditions or other operating conditions caused by COVID-19, (2) the employer has reasonably attempted to restore the employee to an equivalent position, and (3) if reasonable efforts fail, the employer must make reasonable efforts for one year to contact the employee if an equivalent position becomes available.

The Secretary of Labor has the authority to issue regulations exempting small businesses with fewer than 50 employees when the imposition would jeopardize the viability of the business as a going concern, but no such exemption has been issued as of yet. Employers of health care providers and emergency responders are permitted to exclude employees from this law.

Employers should be mindful that the unique eligibility requirements, and the paid component of, this expanded FMLA provision do not impact the existing provisions of FMLA, and are specific to address the COVID-19 pandemic.

Hoge Fenton’s Employment Law team is standing by to help you retain your employees and serve your customers during the COVID-19 pandemic. Please do not hesitate to contact any of us below.

Chair & Shareholder
+1.408.947.2456
Shareholder
+1.408.947.2435
Attorney
+1.408.947.2457

This information is provided as an educational service by Hoge Fenton for clients and friends of the firm. This communique is an overview only, and should not be construed as legal advice or advice to take any specific action. Please be sure to consult a knowledgeable professional with assistance with your particular legal issue. © 2020 Hoge Fenton

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