COVID-19 Update: Families First Coronavirus Response Act and Cal-WARN Act

Families First Coronavirus Response Act

On March 24, 2020, the U.S. Department of Labor ("DOL") announced that the Families First Coronavirus Response Act, which includes the Emergency Paid Sick Leave and the Emergency Family and Medical Leave Expansion Act will become effective on April 1, 2020. This is a day earlier than previously anticipated.  

The DOL also issued its first set of Questions and Answers regarding the Act. The DOL confirmed that the Act is not retroactive, and will only apply to leave taken between April 1, 2020 and December 31, 2020. Some of the additional questions answered in the FAQ include the following:

  • How is the 500-employee threshold determined?
  • How are hours counted for a part-time employee for purposes of paying paid sick leave and expanded family and medical leave?
  • Are overtime hours included when calculating pay due to employees?
  • Can an employee qualify for both paid sick leave and expanded family and medical leave?
  • Is all leave under FMLA not paid leave?
  • Are the leave requirements retroactive?
  • How do you determine if an employee has been employed for at least 30 calendar days?

The DOL will be issuing implementing regulations, and will issue additional questions and answers as warranted. 

On March 24, 2020, the DOL issued Field Assistance Bulletin No. 2020-1 stating that it “will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.” The Bulletin sets forth the criteria necessary for an employer to show it made such reasonable, good faith efforts to comply with the Act.

We appreciate that things are changing quickly, and we are here to assist employers as they navigate their response to the COVID-19 pandemic.

Cal-WARN Act Written Notice Requirements Remain In Place

Many employers are rapidly scaling back operations to address the effects of the COVID-19 pandemic. In response, Governor Newsom signed Executive Order N-31-20, which temporarily suspends the 60-day notice requirement in the California WARN Act. Although the notice period is suspended, the written notice requirements are not. As such, if an employer is conducting one of the following, written notice is required to be provided to both the employee (and union, if applicable) and certain Government entities in order to satisfy Cal-WARN:

  • A mass layoff: a layoff during any 30-day period of 50 or more employees at a covered establishment (Labor Code §1400(d).)
  • A relocation: the removal of all or substantially all of the industrial or commercial operations in a covered establishment to a different location 100 miles or more away (Labor Code §1400(e).)
  • A termination: the cessation or substantial cessation of industrial or commercial operations in a covered establishment (Labor Code §1400(f).) 
  • Failure to provide the required written notice could trigger back pay requirements, and other penalties. 

We strongly recommend that employers considering and/or conducting furloughs contact us to discuss the implications of a furlough on Cal-WARN Notice requirements.

We have worked with numerous clients over the past week on these issues and are available to assist employers as needed.

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