April 22, 2020 The Families First Coronavirus Response Act: Updated Guide for Employers

Since the Families First Coronavirus Response Act (“FFCRA”) was signed into law on March 18, 2020, the Department of Labor (“DOL”) has issued multiple rounds of guidance, a temporary rule and a final rule interpreting the new law and defining employers’ obligations to provide paid sick leave and paid family leave to employees who are unable to work for reasons related to the COVID-19 pandemic.

On April 1, 2020, we issued an E-Update with a guide to the FFCRA and the DOL’s interpretive guidance. On April 7, we updated our guide after additional information and final regulations were published by the DOL. Two days ago, on April 20, the DOL once again supplemented its guidance on the FFCRA and its final regulations. 

PPSC’s updated FFCRA guide included with this E-Update (accessible through the link below) incorporates all of the statutory and regulatory guidance on the FFCRA through April 20, 2020, including key provisions from the DOL’s Questions and Answers and its final regulations implementing the FFCRA. The guide includes a Table of Contents linked to the listed topics.

Summary of New DOL Guidance

The DOL’s April 20th additions and changes to its FFCRA Questions and Answers include the following:

1. Employers may require employees to use preexisting paid vacation and personal time (but typically not paid sick time) concurrently with (i.e., during) the employee’s ten weeks of Paid Family Leave. Alternatively, employers may require employees to use preexisting vacation or personal time to supplement their 2/3 pay under the FFCRA during the ten weeks of Paid Family Leave.   

2. Employers must use different methods for calculating the average number of hours an employee is entitled to be paid during FFCRA Paid Sick Leave and Paid Family Leave. The former involves averaging hours worked on all calendar days in the six months preceding the start of FFCRA leave, and the latter involves averaging all hours worked on scheduled work days during the same period. In both cases, unpaid leave hours are included in the calculations. Further, the DOL has clarified that employers may use their customary time rounding practices under most circumstances.

3. Additional guidance and new examples have been provided regarding the method for calculating the employee’s “average regular rate” of pay to be used for paid FFCRA leave. Included in this clarification is the requirement that salaried employees paid a fixed salary per week regardless of the number of hours worked, must be paid their “average regular rate” during FFCRA leave (not necessarily their fixed salary), which is calculated by dividing all hours worked over the 6 months immediately preceding the start of leave by the total compensation paid in that period. If the salaried employee’s actual hours are not documented or unknown, the employer must use a reasonable estimate.   

4. Employers need only calculate the “average regular rate” once for an employee who takes multiple periods of FFCRA leave. The employer may use its first calculation for all subsequent periods of FFCRA leave taken by the employee.

5. Employers may choose to allow health care providers and emergency responders to have FFCRA leave benefits in some circumstances and deem them exempt from FFCRA benefits in other circumstances. For example, an employer may allow these employees to use FFCRA leave for their own COVID-19 related illness, but not for child care purposes.

6. The DOL provided examples of the unique circumstances under which an employee would be entitled to FFCRA leave by reason of being subject to a government-issued stay-at-home or shelter-in-place order. This includes circumstances where onsite work is available from the employer (but not telework), yet the employee cannot be onsite because they are prohibited from leaving a containment zone or subject to a 14 day self-quarantine after departing a cruise ship. 

For additional details on the latest DOL guidance, please see the highlighted sections of our PPSC guide to the FFCRA, available at the link below.

Download the guide

PPSC has issued this E-Update to provide information on new legislation and government policy as a courtesy. It contains general information and does not constitute legal advice, nor does it create an attorney-client relationship. Application of any law is always fact-specific, so you should consult with legal counsel before taking any actions based on the new law.

Denise Brucker Heather Davis Camille Gustafson
Fred Plevin Michael Sullivan