Families First Coronavirus Response Act

On March 19, 2021, California Governor Gavin Newsom approved Senate Bill 95 (“SB 95”) which entitles most California employees to a new bank of COVID-19 supplemental paid sick leave.  The law will go into effect on March 29, 2021.

California’s prior law entitling workers to COVID-19 supplemental paid sick leave expired on December 31, 2020

On March 10, 2021, Congress passed its landmark $1.9 trillion COVID-19 relief bill, and President Biden signed the bill into law on March 11.  The bill does not require employers to continue offering Families First Coronavirus Response Act (“FFCRA”) leave, but it extends the FFCRA’s payroll tax credit provisions for employers who choose to offer

California Assembly Bill 1867 (signed by California Governor Gavin Newsom on September 9, 2020) and Senate Bill 1383 (signed on September 17, 2020) significantly expand the rights of California employees to both paid and unpaid leave.  In addition, and especially as they relate to Senate Bill 1383, these laws will require California employers to promptly

On August 3, 2020, a federal judge in the Southern District of New York held that four provisions of the U.S. Department of Labor’s (DOL) Final Rule (the Final Rule) implementing the Families First Coronavirus Response Act (FFCRA) are invalid.  This ruling is limited for now, as the court did not issue a nation-wide injunction, but its reasoning could be applied in other jurisdictions around the country.  For that reason, employers should be aware that changes to FFCRA obligations may be forthcoming.

As we discussed in a previous post, the FFCRA obligates employers to offer sick leave and expanded family leave to employees who cannot work because of certain reasons related to the pandemic.  At issue here are two major provisions of the FFCRA: Emergency Family and Medical Leave Expansion Act (EFMLEA), which entitles employees to partially paid leave to care for a dependent child due to COVID-19 school or daycare closures, and the Emergency Paid Sick Leave Act (EPSLA), which requires employers to provide paid sick leave to employees who are experiencing one of six qualifying COVID-19-related circumstances.  (See here for additional information.)

After concluding that New York had standing to challenge DOL’s Final Rule, the court considered the validity of four provisions: the work-availability requirement, the definition of health care provider, the prohibition on intermittent leave, and the documentation requirements.
Continue Reading New York Federal District Court Rules Four Provisions of COVID-19 Paid Leave Rule Invalid

Thank you to everyone who attended our webinar on Taming the COVID-19 Chaos, Part 6—Bringing Employees Back to Work.  If you missed it, be on the lookout for details on future webinars to help employers navigate these challenging times.

We received some questions about whether employees can continue to use FFCRA leave after the end

On April 1, 2020, the U.S. Department of Labor (“DOL”) issued regulations for the Families First Coronavirus Response Act (“FFCRA”), which went into effect the same day.  The regulations are available here.

The majority of the content in the regulations is not new and simply repeats information that is also available in the DOL’s FAQs guidance (which has been updated several times since it was first posted).  The DOL’s FAQs are here, and our blog post highlighting key takeaways from the FAQs as initially posted is here.

The latest information for employers from the regulations and the updated FAQs includes:

Clarification of small business exemption.

  • Employers with fewer than 50 employees may assert they are exempt from providing emergency paid medical leave (“EPML”) or emergency paid sick leave (“EPSL”) to employees who miss work due to a school or childcare closure. (Note that there are numerous qualifying reasons to use EPSL, including when an employee has been advised to self-quarantine or is showing symptoms consistent with COVID-19 and seeking a medical diagnosis.  However, there is no exemption that will allow small employers to avoid providing EPSL altogether.)
  • To deny an employee EPML or EPSL as outlined above, an “authorized officer” of the small employer must determine that:
    • providing such leave would cause the employer’s expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity;
    • the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of their specialized skills, knowledge of the business, or responsibilities; or
    • the employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services that the employee(s) requesting leave provide, and these labor or services are needed for the employer to operate at a minimal capacity.
  • Small employers are not required to formally “apply” for the exemption; rather, they must “document the facts and circumstances . . . justify[ing] [the] denial” of leave. The small business exemption does not require prior approval from the DOL, and neither the FFCRA nor the regulations create an express right for employees to challenge the employer’s determination that it qualifies.  Thus, it would appear that small employers have a great deal of discretion to determine whether they qualify for the exemption.
  • Small employers who assert the exemption must still post the FFCRA notice to employees.

Use of employer-provided paid time off during EPML.  After the first two workweeks of EPML, employers can require that employees take EPML concurrently with any employer-provided paid time off (such as vacation or personal leave) that would otherwise be available for employees to care for their children under the employer’s policies during their absence.  Employees can also elect to use employer-provided paid time off concurrently.  During the first two workweeks of EPML, employees may elect to use their employer-provided paid leave or EPSL, but the employer may not require them to do so.
Continue Reading Department of Labor Issues Regulations and Updates Guidance for Families First Coronavirus Response Act