Thursday, March 26, 2020

Coronavirus Update 3-26-2020 number 2: Is the DOL’s FFCRA notice correct as published?

The speed at which the coronavirus news cycle moves is dizzying.

Is it possible that the DOL’s FFCRA Employee Rights Poster is correct as published, even with it listing a $12,000 cap for paid family leave?

Here’s what the law says:
  • The law limits paid leave to $511 per employee per day (and $5,110 per employee in total) where leave is taken for reasons (1), (2), and (3) in the Act (generally, an employee’s own illness or quarantine); and $200 per employee day (and $2,000 per employee in total) where leave is taken for reasons (4), (5), or (6) (care for others or school closures).

  • The law limits paid family leave under the amended FMLA to $200 per employee per day (and $10,000 per employee in total).

Here’s what the poster says:
Generally, employers covered under the Act must provide employees:
  • Up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of their regular rate of pay, or the applicable state or Federal minimum wage, paid at 100% for qualifying reasons #1-3 below, up to $511 daily and $5,110 total; 
  • 2/3 for qualifying reasons #4 and 6 below, up to $200 daily and $2,000 total; and 
  • Up to 10 weeks more of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5 below for up to $200 daily and $12,000 total.

I read the poster as providing up to $12,000 per employee for paid family leave under the FMLA (which contradicts the FFCRA’s $10,000 per employee cap). Apparently, there is another way to read it. A commenter on LinkedIn (who private messaged me to assure me that his sourcing within the DOL is solid), reports the following:

It certainly is unclear but it actually is not a typo. Got word from DOL that the poster was discussed in depth and it is correct as posted and cleared through solicitor’s office. You get 10k for expanded FMLA but if you roll it together with paid sick, you get $12k.

In other words, the DOL is going with the $12,000 number because that’s the total amount paid leave available for an employee taking a childcare related leave of absence under the Act. There are definitely clearer ways the DOL could have said this, and it will create confusion for employers and employees. But if that’s what they’re going with, then so be it. The DOL’s less-than-clear poster is available for download (and posting) here [pdf].

A few more points about this poster, from an FAQ the DOL also posted yesterday:

  • Each covered employer (any business with fewer than 500 employees) must post the notice in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an intranet or other employee informational website. An employer cannot place it in a binder, book, or folder; it must be conspicuous. 

  • Even if employees speak languages other than English, employers are not required to post the notice in multiple languages (but the DOL is working to translate it).

  • Employers do not have to provide the notice to laid-off employees, only current employees. (It’s unclear if this includes, or does not include, employees on furlough; hopefully the regulations the DOL is supposed to publish “soon” will clear this up.)