Families First Coronavirus Response Act Update
By: Robert W. Small
March 26, 2020 - 10:20 AM
The Secretary of Labor has published Notices and an FAQ Information Sheet informing employees of their rights under the Families First Coronavirus Response Act, which takes effect on April 1st. (More on that effective date in a minute.) Employers are required to post the Notices by April 1st, as they would other Notices informing employees of their rights under federal law. Some states have passed their own laws creating employee rights during the crisis. Employers in those states must comply with both state and federal law and be on the look-out for any state Notice obligations. The federal Notice private businesses are required to post can be found here, and the FAQ sheet can be found here. (Note: a separate Notice exists for federal Employers.)
The Notice contains a confusing statement that Employers should be aware of as it is likely to raise questions from covered employees. For employees who cannot work because they are caring for a son or daughter whose childcare has become unavailable due to the crisis, the Act provides two benefits: paid sick leave at 2/3 the employee’s regular rate of pay but limited to $200 per day and $2,000 in the aggregate; and, up to 10 weeks of paid emergency FMLA leave, again, at 2/3 the regular rate capped at $200 per day and $10,000 in the aggregate for a maximum combined benefit of $12,000. The way the Notice reads, employees might be misled to believe that the cap on the emergency FMLA leave alone is $12,000, such that there is a combined benefit of up to $14,000.
Employers with employees who are teleworking should give the required Notice by mailing or emailing it to those employees and/or posting it on the Employer’s website or social media page. Technically, the Notice does not have to be given to employees who have already been laid-off or terminated. However, providing it to them in the same manner might be seen as an act of goodwill by employees whom the Employer wishes to re-hire.
Now a word about the effective date of the Act itself. It has been widely reported (including by me in previous alerts, which you can read here), that the Act takes effect on April 2nd, based on the understanding that it takes effect 15 days after signature by the President, which was on March 18th. The actual language of the Act states, however, that it will take effect “not later than” 15 days after signing by the President. Everyone commenting on the Act assumed that meant 15 days after signature. The DOL has taken the position, however, that the Act will take effect on April 1st, and that makes it the official effective date.