Weekly Legislative Update April 6, 2020

Department of Labor Continues to Clarify Guidance on FFCRA Guidance
 
The Department of Labor (DOL) continues to update its guidance document on implementation of the Families First Coronavirus Response Act (FFCRA), almost on a daily basis. The updated document released by the agency late last week appears to suggest that employees who cannot work because their businesses are subject to a government shutdown order or they are ordered to shelter at home will not qualify for Emergency Paid Sick Leave or Emergency FMLA.
 
To see the most recent clarification from the DOL and the updated Frequently Asked Questions (FAQ) document, click HERE

President Signs the Coronavirus Aid, Relief, and Economic Security (CARES) Act
 
On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, intended to stimulate the national economy in the wake of the COVID-19 pandemic. The bill provides direct financial assistance to Americans, eases access to loans and other economic assistance to businesses of all sizes, and provides aid and support to healthcare providers. The CARES Act does modify the Families First Coronavirus Response Act (FFCRA) in several key ways.
 
See the full article HERE

Interest Grows in Including Infrastructure in "Phase 4" Coronavirus Bill
 
President Trump and House Speaker Nancy Pelosi (D-CA) separately stated their interest in including funding for a large infrastructure plan in future legislation to respond to the coronavirus pandemic. While the Speaker has been discussing infrastructure investment for the last few days, the President announced his support today, tweeting, "With interest rates for the United States being at ZERO, this is the time to do our decades long awaited Infrastructure Bill. It should be VERY BIG & BOLD, Two Trillion Dollars, and be focused solely on jobs and rebuilding the once great infrastructure of our Country!" Despite the President's support, Senate Majority Leader Mitch McConnell (R-KY) said this morning  that his chamber will not support legislation filled with "unrelated [to the coronavirus response] policy items."

Tariff Actions
 
Media reports indicated that President Trump would be signing an executive order that would give companies a 90-day grace period on paying most tariffs. The order would not apply to tariffs on Chinese goods, steel, and several other items.

DOL Continues to Issue FFCRA Guidance
 
As we flagged last week, the Department of Labor (DOL) has been busily preparing for the implementation of the Families First Coronavirus Response Act (FFCRA).  
 
The DOL has created a page of FAQs, which it has continued to add to in recent days, that provides answers to most of the biggest and most pressing questions regarding the FFCRA -  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
 
In particular the FAQs:
 
·         Provide that the law will go into effect on April 1, 2020. As we previously noted, the text of the FFCRA states that the act takes effect "not later than 15 days after the date of enactment." Thus, the widespread understanding was that the FFCRA would go into effect on April 2 (the 15th day after enactment). The DOL has made it clear that this is not the case and that the law will be effective April 1, 2020. See FAQ #1.
 
·         Confirm that employees will only be able to take leave under the FFCRA if the employer otherwise has work for them to do.  In other words, if an employee is furloughed before or after April 1, the employee will not be eligible for FFCRA.  Likewise, if an employee's hours are reduced, the employee will only be able to take FFCRA leave to receive paid leave based on their reduced schedule. See FAQ # 23 through 28. 
 
·         Specify that employers will not receive credit for any leave for FFCRA purposes that they have voluntarily provided to employees prior to April 1.  As of April 1, any employee who is eligible for FFCRA leave must receive the full leave regardless of any leave previously provided to them.
 
·         Provide guidance on how employers should calculate whether they are under or over the 500 employee threshold for the purposes of the FFCRA. See FAQ #2.
 
·         Explain the general framework for businesses with less than fifty employees to claim an exemption to the FFCRA and specify that the business may do so if an officer of the business determines the business falls into one of three scenarios as described in the FAQs.  See FAQ # 58 and 59. 
 
The FAQs are among the helpful resources that the Department of Labor has provided on its COVID-19 site, which we would encourage you to keep an eye on for further updates https://www.dol.gov/agencies/whd/pandemic
 
On that site, the DOL has published the model notice that employers will be required to post and advise employees of their rights under the FFCRA.  However, the DOL will need to revise and reissue these notices before April 1 as the CARES Act changes the maximum that an employee may receive while on emergency FMLA (reducing the max from $12,000 to $10,000)   
 
Rest assured, we have rolled up our sleeves and are diving into the details of the CARES Act and will offer additional analyses and insights in our next alert.