DOL Publishes Mandatory Model FFCRA Notice to Employees

The United States Department of Labor has released its Model Notice to employees explaining Paid Sick Leave and Expanded Family and Medical Leave rights under the Families First Coronavirus Response Act.

The language of the Act is not clear as to whether all employers must post the notice, or whether only employers with fewer than 500 employees are required to do so (though the DOL's Frequently Asked Questions suggest that only covered employers must post the notice). In either event, employers must post the notice “in conspicuous places on the premises where notices are customarily posted.” These would be places employers usually display things like all-in-one labor posters and wage orders.

We also recommend that employers place the notice on their employee portals or online (with other employment rights and benefits information) when applicable. This is particularly important while employees are working remotely during the pandemic. (The DOL's Frequently Asked Questions also comment that employers may mail or e-mail the notice to employees, though this is not mentioned in the law.)

Employers are not required to provide notices directly to employees, but the Model Notice should be posted before April 1, 2020 (the date the Act becomes effective). Future regulations may permit employers to substitute their own similar notice, but these rules will not be published until some time in April or later.

Significantly, the Model Notice does not advise employees that employers with fewer than fifty employees may opt out of the Act’s paid family leave requirements if they meet certain criteria. These criteria will be in regulations promised by the DOL for April but are currently unknown. This means employers must post the notice without knowing whether they qualify for the opt-out.

The Model Notice can be viewed here, and the DOL FAQ can be viewed here. Additional information regarding COVID-19 issues is published at the DOL's COVID-19 and the American Workplace page, here.

DOL Issues Initial Guidance Under the Families First Coronavirus Response Act

The U.S. Department of Labor has issued initial guidance on various issues under the Families First Coronavirus Response Act, publishing a Fact Sheet for Employers (here), a Fact Sheet for Employees (here), and a Questions and Answers document (here) addressing some of the questions posed by businesses and their workers over the past week.

The March 24 guidance does not contain any of the agency’s draft regulations or its anticipated notice to employees, which will be released soon. The guidance is not legally binding but could be persuasive to courts and other agencies due to the DOL’s oversight role under the Act.

The Fact Sheet for Employees covers basic qualification, length of leave, and pay issues under both the Emergency Paid Sick Leave and Expanded Family Medical and Leave portions of the new law. It also reiterates that Paid Sick Leave is available immediately to employees upon hire, while Expanded Family and Medical Leave requires workers to have been employed for 30 days. Other important issues, such as when employers with fewer than 50 employees may be excused from certain parts of the law, are left to future regulations that are “expected [in] April 2020.”

The Fact Sheet for Employers is similar but contains a few important details. First, it clarifies that employees are not required to use the Emergency Paid Sick Leave benefit during the first two weeks of Expanded Family and Medical Leave (saving it, perhaps, for later in the year) but may “elect to substitute any accrued vacation leave, personal leave, or medical or sick leave.” Second, it reiterates that leave does not carry over from year to year (which makes sense, as the law sunsets on December 31, 2020) and is not cashed out at termination. Third, it promises that a model notice to employees will be published by March 25, 2020.

The guidance also notes that employers of Health Care Providers or Emergency Responders may elect to exclude such employees from leave under the Act, but it does not define these terms. “Health Care Provider” presumably has the same meaning as under the Family Medical Leave Act, which includes physicians, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, Nurse Practitioners, nurse-midwives, clinical social workers, physician assistants, certain religious practitioners, and – more broadly – any provider from whom an employer or its group health plan will accept “certification of the existence of a serious health condition … for benefits.” See 29 C.F.R. § 825.125.

“First Responder” presumably has the same meaning used under the federal Fair Labor Standards Act, which includes law enforcement and correction/probation personnel, park rangers, firefighters, emergency medical and rescue personnel (paramedic, EMT, etc.) and other similar employees. See DOL Fact Sheet No. 17.

The Questions and Answers sheet addresses several important issues under the new law, including:

· The paid leave provisions apply only to leaves between April 1 and December 31, 2020 – and is not retroactive (so paid leave provided before April 1 will not count toward the minimums and will not be reimbursable under its tax-refund program);

· The 500-employee maximum includes only employees in the United States, including joint employees but excluding independent contractors, and “integrated employers” may aggregate their employees toward the threshold;

· Employers with fewer than 50 employees must “document” why they meet the exemption criteria (to be addressed in April regulations) but will not be required to submit materials directly to the DOL;

· Employers follow the methods described in the Act to determine part-time employees’ benefit, and overtime is included when calculating any employee’s usual schedule (though the maximum benefit is capped at 80 hours);

· The “regular rate” of pay used for benefit calculation refers to an employee’s regular rate of pay (calculated the same way regular rate is calculated for overtime) over the past six months; and

· Employees have been employed for 30 days if they were on the employer’s payroll 30 days prior to the day leave starts (regardless of time worked). Employees who worked as temporary employees may count that time toward the 30-day requirement.

We expect more guidance in the coming week, and a model notice within the coming

day.

The DOL’s landing page for today’s guidance can be viewed here.

Whether a Business May Continue Operating Under Stay-at-Home Orders ... (and what is "CISA"?)

In the past days, states and municipalities have issued various emergency and stay-at-home orders to require isolation and, where appropriate, social distancing. These orders effectively close many businesses except for a few minimum operations. The main order now in place for California employers is Governor Newsom's March 19 Stay-at-Home order, which is posted online here.

This leaves employers wondering whether they may continue operating, and what will happen to their workforce.

Governor Newsom's order, like other similar statewide orders appearing this week, prohibits non-home-based work in businesses not specifically allowed under its terms. It allows continued operation of businesses within the "Essential Critical Infrastructure."

"Essential Critical Infrastructure" refers to a broad set of sixteen "Sectors" and their interdependent businesses and resources. The concept behind the system is that many types of disasters (such as terrorism, military attack, natural events, and pandemic) could cripple entire categories of national operation (such as healthcare or transportation) by degrading even small important parts of the system. Each Sector is dependent on certain other Sectors (such as water and energy).

This system is defined and administered by the Cyberstructure and Infrastructure Security Agency ("CISA"), an arm of the Department of Homeland Security.

The various essential Sectors, descriptions of their operations, and the documents defining each Sector are on CISA's website, located here. The site contains guidance:

"intended to support State, Local, and industry partners in identifying the critical infrastructure sectors and the essential workers needed to maintain the services and functions Americans depend on daily and need to be able to operate resiliently during the COVID-19 pandemic response."

CISA maintains a page providing guidance here (which is cited in multiple state-wide orders such as CA and IL), and Governor Newsom's office has published its own guidance here.

Employers should review these materials, which actually permit a very broad set of infrastructure-important activities, to determine whether they arguably fall within the COVID-administered system.

We also believe that employers should continue their compliance with local ordinance, such as those discussed in our blog posting here, in addition to the state order(s) except where they conflict with state mandate. For example, we believe that a worker needed to support state-approved critical infrastructure in one county may travel out of or through another to work.

We also encourage employers to prepare a document employees may carry explaining that they work for the business in a particular position, that the business performs certain essential infrastructure functions, a description of the functions and why they are allowed, the address of the business and areas where the employee works, and a contact at the business for further information. This may assist employees traveling from home to work or while performing their duties. The same document should be carried by staff performing essential minimal operations under local orders, such as securing inventory or processing payroll while business is suspended.

We will continue watching developments and update this post as necessary.