By Christina M. Reger, Esq.

Last night, the US Department of Labor announced its first Guidance (more indicated to come) on the Families First Coronavirus Response Act.

The Guidance provides a fact sheet for employees and a fact sheet for employers but both basically summarize the FFCRA paid leave provisions as follows:

• two weeks (up to 80 hours) of paid sick time 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 time 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 to 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
• and makes mention of the additional 10 weeks leave under the FFCRA for certain qualifying reasons.

The Guidance also summarizes who is covered — public and private employers with under 500 employees — and indicates that it may exempt employers with under 50 employees. “Certain provisions may not apply to certain employers with fewer than 50 employees. See Department FFCRA regulations (expected April 2020).”

The Questions and Answers also provide important information to some of the critical questions many of you have asked me.

• First, the FFCRA is effective April 1, 2020.
• If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption? To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations. You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.
• The computation for a part-time employee.
• Employers cannot deny the 80 hours if you gave the employee sick (or other) leave before the Act came into effect. In other words, no retroactivity.

Many questions remain unanswered, but the Guidance summarizes (and saves you) from reading the 110 page FFCRA published last week and the Q&A provides some critical pieces to the puzzle.