On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed into law, marking the second major legislative initiative to address COVID-19. The key provisions of the FFCRA address emergency paid sick leave and expanded medical leave requirements. On March 24, 2020, the U.S. Department of Labor (“DOL”), in advance of issuing its full regulations, published guidance to help explain the FFCRA.

The DOL confirmed that the paid leave provisions of the FFCRA apply to leave taken between April 1, 2020 and December 31, 2020. The emergency paid sick leave and paid expanded family and medical leave requirements are not retroactive. Thus, any leave that was granted by an employer for reasons covered under the FFCRA prior to April 1, will not be counted toward the entitlement under the Emergency Paid Sick Leave provisions of the FFCRA.

Private sector employers are only required to comply with the FFCRA if they have fewer than 500 employees. The guidance clarifies how businesses can calculate the number of employees for purposes of the FFCRA. Businesses have fewer than 500 employees if, at the time the employee’s leave is to be taken, the business employs fewer than 500 full-time and part-time employees within the United States.

The FFCRA also includes exemptions for small businesses with less than 50 employees. Businesses should not send any materials to the DOL when seeking a small business exemption for emergency paid sick leave and expanded family and medical leave. However, small businesses with less than 50 employees will be required to document why they meet criteria for exemption for childcare-related paid sick leave. The DOL has indicated that the forthcoming regulations will address exemptions for small businesses.

The guidance from the DOL clarifies how employers count hours for part-time employees, how to calculate an employee’s regular rate of pay, and whether to calculate overtime hours when paying employees under the FFCRA. A part-time employee is entitled to leave for the average number of hours worked in a two-week period, based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, employers may use a six-month average to calculate the average daily hours. If the employee has not been employed for at least six months, use the number of work hours agreed to upon hiring. When calculating pay, overtime hours must be included.

Further, the DOL clarified that each full time employee may take a maximum of 80 hours of emergency paid sick leave (part time employees may take a maximum of the average number of hours worked in a typical two week period) regardless of the number of qualifying reasons the employee may have to take time off.  However, employees who are out of work due to school/childcare closures may take up to an additional 10 weeks (for a total of 12 weeks) of childcare-related paid expanded family and medical leave.

The full text of the FFCRA is available here.

The DOL’s Families First Coronavirus Response Act: Questions and Answers are available here.

Further DOL guidance for employers on the FFCRA is located here.

If you have any questions or concerns, you are welcome to contact the offices of Churchwell White at (916) 468-0950 or email Steve Churchwell at Steve@whitebrennerllp.com, Debra Hinshaw Vierra at Debra@whitebrennerllp.com, or Barbara Brenner at Barbara@whitebrennerllp.com.