As we continue to share pertinent information and periodic updates on the Covid-19 outbreak, please feel free to reach out to me personally if you have any questions, comments or need direction concerning a specific issue. My cell is as follows: Julie (714) 889-9472.
Update as of April 6, 2020:
DOL issued a final rule today interpreting the Families First Coronavirus Response Act (FFCRA). Below are some key points to supplement our previous FFCRA memo and email. See previous memo attached.
1. Stay-At-Home Orders. Recall that one of the six bases to take paid sick leave is when an employee is unable to work or telecommute because of a “Federal, State, or local quarantine or isolation order related to COVID-19.” In its earlier guidance, DOL stated that “Stay at Home” orders are not the same as isolation or quarantine orders and, therefore, do not in and of themselves give rise to paid sick leave entitlement under the FFCRA. However, in its final rule, DOL states that, in some cases, “Stay at Home” orders might give rise to paid sick leave entitlement, but only if complying with a “Stay at Home” order itself prevents an employee from either working or telecommuting.
For example, if a “Stay at Home” order prohibits employees with certain health conditions from going to a jobsite, employees with those conditions would have a right to paid sick leave. However, DOL’s regulations show that an employee is not entitled to paid sick leave when a jobsite is shutdown, as the employee’s inability to work is not based on having to comply with a “Stay at Home” order, but rather because the jobsite has been closed. Though subject to change, we do not see language in Governor Inslee’s “Stay at Home/Stay Healthy” order preventing a certain class of citizens from going to work. These cases are heavily fact-dependent and you should consult with a labor and employment attorney if you have questions about a specific situation.
2. Documentation of Need for Leave. The final rule states that an employee must provide employers with certain documentation to support the need for leave. The documentation must include a signed statement with the following: (a) the employee’s name; (b) the date(s) the leave is requested; (c) the COVID-19 qualifying reason for leave; and (d) a statement that that the employee is unable to work or telecommute because of the COVID-19 qualifying reason. The rule allows for other documentation requirements depending on the reason for the leave. Obtaining this documentation is important because, as we pointed out earlier, employers can later obtain payroll tax credits under the FFCRA to help offset paid sick leave expenditures.
3. Notice. A reminder that employers must provide notice of FFCRA benefits to employees. The final rule states this can be done electronically, e.g., via email or on employee information website. The DOL has published a model notice here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.
Here is a link to the final rule: https://www.govinfo.gov/content/pkg/FR-2020-04-06/pdf/2020-07237.pdf.
Here is DOL’s summary of the final rule with a Q&A and fact sheets for employers: https://www.dol.gov/agencies/whd/ffcra.
The above is informational only and should not be construed as legal advice. You are strongly encouraged to consult with a labor and employment attorney if you have specific questions.
Free Webinar on April 7 – COVID-19 Relief for Businesses
Felhaber Larson’s attorneys are offering a free 1-hour webinar to guide you through important loan and tax credit provisions available to businesses, namely in the CARES Act, that are intended to provide relief to businesses during the COVID-19 pandemic.
The webinar is entitled: COVID-19 Relief for Businesses
DATE & TIME: APRIL 7, 2020 – 1 to 2 pm
TOPICS:
CARES Act and Small Business Loans: What to Expect from the Paycheck Protection Program and Economic Injury Disaster Loans. Presenter: Patrick Messmer
CARES Act and FFCRA Relief for Businesses, Including Tax Credits, Tax Deferrals, and Modified Tax Provisions. Presenter: Liz Roetker
Space is limited to the first 200 people who register so sign up today by sending an email to HR@felhaber.com. The subject line of the email must say “COVID-19 Relief for Businesses”.
A WebEx invitation with a link will be sent to all registrants before the program to allow you to log in.
Summary of the Family First Coronavirus Relief Act
Julie Muller, Esq.
Executive Vice President
SMACNA - Western Washington