Families First Coronavirus Response Act – Update (Benefit Minute)

Posted in: Benefit Minute, COVID-19, Employee Benefits

On March 24, 2020, the Department of Labor issued Questions and Answers addressing certain aspects of the Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFMLA) provisions of the Families First Coronavirus Response Act (FFCRA).  This is the first round of compliance assistance regarding the new law, and we fully expect additional guidance to be forthcoming from the DOL in the near future.  We also expect guidance from the IRS regarding the mechanism for claiming the tax credits related to EPSL and EFMLA.

Highlights of the DOL Questions and Answers include:

  • Both EPSL and EFMLA are effective for leave taken from April 1, 2020 through December 31, 2020.
  • EPSL imposes a new leave requirement on employers as of April 1, 2020, so an employer who has already provided paid leave for a reason identified in EPSL cannot deny future EPSL to an employee who qualifies, and cannot designate any leave already provided as EPSL or EFMLA.
  • The fewer than 500 employee threshold is based on the total number of employees at the time an employee takes EPSL or EFMLA.  The employee count is based on total number of employees in the United States, including full time, part time, employees on leave, temporary employees employed jointly by the employer and another employer (regardless of which employer’s payroll  the employee is on), and day laborers supplied by a temporary agency.
  • The FLSA/FMLA tests for joint employer and integrated employer apply for determining the employee count when there are related entities.
  • There is a limited exemption under both EPSL and EFMLA for employers with fewer than 50 employees if providing child-care related leave would jeopardize the viability of the business as a going concern.  Additional guidance from the DOL to follow.

Also, on March 25, the DOL issued a Notice that outlines employee rights under the FFCRA, along with some FAQs about how to post/distribute.  The FAQs state that the requirement to provide this notice can be met for teleworking employees by emailing or direct mailing the notice to employees, or posting the notice on an employee information internal or external website.  The notice should also be posted in a conspicuous place on the business premises.

The Department of Labor is providing a 30-day non-enforcement period for the FFCRA (from March 18, 2020 through April 17, 2020) that applies as long as an employer makes a reasonable good faith effort to comply.  This good faith effort to comply will be demonstrated by:

  • Employer curing all violations and making all affected employees whole as soon as practicable.   An employer who is eligible for tax credits but has insufficient cash flow should make payment of EPSL and EFMLA wages as soon as possible but not later than 7 calendar days after the employer has withdrawn the required amount of wages from federal payroll tax deposits or received a refund of the credit amount from the IRS.
  • Violations were not willful.
  • DOL receives a written commitment from the employer to comply in the future.

After April 17, 2020, the DOL will fully enforce the provisions of FFCRA as appropriate and consistent with the law.

Please click the image below to download this PDF on provisions for the FFCRA.


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