Obligations and Rights for Employers and Employees under the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) goes into effect on April 1, 2020. It consists of two types of leave certain employers are to provide to their employees under certain circumstances related to COVID-19. The U.S. Department of Labor’s Wage and Hour Division administers and enforces the requirements. The Department of Treasury has/will have information about the employer credits for providing leave under the FFCRA.

The FFCRA applies to certain public and private employers who employ fewer than 500 employees, except for most federal government employees (“Covered employers”). Small businesses with fewer than 50 employees may be exempt from certain requirements if the businesses make a determination that the leave requirements would jeopardize the viability of the business.

It is our position and analysis that Governor Newsom’s Stay at Home Order, extended orders, and local county Shelter in Place orders constitute “a federal, state, or local government order” discussed below.

Below are highlights regarding the rights and obligations of certain employers under the FFCRA.

The regulations on the FFRCA which are scheduled to be released in April 2020 will provide more guidance. As of this morning, no regulations have been posted. We will keep you updated.

Other implications of COVID-19, the Stay at Home Orders and FFCRA include but are not limited to:

• Employers should continue to provide reasonable accommodations for disabled employees, whose disabilities have nothing to do with COVID-19, whether they are working from home or onsite.

• Employees who work from home may incur and be entitled to reasonable expense reimbursements for items such as toner, paper and internet costs under Labor Code section 2802.

• If employers need to close their operations temporarily or permanently, they need to pay employees the usual final unpaid wages, unused vacation and unpaid requested expense reimbursements on the day of termination[4].

Here are some helpful resources, including the notice which needs to be posted beginning April 1, 2020:

• https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

• https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

• https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#58

• https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1

• https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf
  

[1] A small business may claim this exemption if an authorized officer of the business has determined that:

1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; OR

2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; OR

3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#58

[2] This aspect is administered by the Department of the Treasury.

[3] Causes of action potentially available to employees who are denied the benefits of the FFCRA, or are discriminated against or retaliated against or terminated for their exercise of the FFCRA, or who report violations of the FFCRA include: Wrongful Termination in Violation of Public Policy, Unfair Competition, and Retaliation in Violation of Labor Code Section 1102.5.

[4] California employers with 75 or more employees which were subject to requirements of the WARN Act are only required to give written notice of action as soon as is practicable with (1) a brief statement of the basis for reduced notice and (2) the following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”