Guidance on New Families First Coronavirus Response Act

Update: 3/30/2020

The U.S. Department of Labor and Industry has posted additional questions and answers regarding implementation of certain provisions of the Federal Families First Coronavirus Response Act. The questions and answers can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

This information includes the following answer, which is very important for many of our clients:

57. Who is an emergency responder?

ANSWER: For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

Yesterday, the Department of Labor Wage and Hour Division issued guidance on the New Families First Coronavirus Response Act. The Act, which will take effect on April 1, 2020, provides paid leave to employees for Coronavirus related absences.

Under the Act, all employees are entitled to up to eighty hours of paid sick leave at their regular rate of pay when an employee is unable to work (or telework) because of one 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 has been 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.

All employees entitled to up to eighty hours of paid sick leave at two-thirds their regular rate of pay if they are unable to work (or telework) because of one of the following reasons:

  1. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
  2. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
  3. 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.

In addition, employees who have been employed for at least 30 days, can receive up to an additional 10 weeks of expanded FMLA at two-thirds their regular rate of pay if the employee is unable to work due to a bona fide need to care for a child whose school or child care provider is closed due to COVID-19.

Some employers were reading the Act’s language as discretionary as to whether to credit time off prior to April 1st as Emergency Sick Leave or the Expanded FMLA leave; however, the Department of Labor’s Guidance answers that question in the negative. The Act is not retroactive and employees are not entitled to the leave it provides until April 1st.

Employers are required to post notice of the Act’s requirements in a conspicuous place in the workplace. If you have employees working from home, you must also email or direct mail the notice to your employees or post it on your website. The poster from the Department of Labor is available here: FFCRA_Poster_WH1422_Non-Federal

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