On April 8, 2020 the U.S. Department of Defense (DoD) issued a Class Deviation authorizing contracting officers to use a new clause – DFARS 231.205-79, CARES Act Section 3610 Implementation, to assist the contractor community with the effects of the Coronavirus Disease 2019 (COVID-19). Section 3610 allows agencies to reimburse paid leave, including sick leave, that a contractor provides to keep its employees or subcontractors in a ready state, including to protect the life and safety of Government and contractor personnel. Paid leave is reimbursable at the contractor’s minimum billing rates under its contracts, and may be allowed for up to an average of 40 hours per week.
Federal Contractor Authority § 3610
Subject to availability of funds, federal agencies are permitted to modify the terms of a federal contractor who cannot perform work at a federal site due to COVID-19 related closures or restrictions and who cannot telework, to provide up to 40 hours per week of leave compensation so that the contractor can keep its employees or subcontractors in a ready state, including to protect the life and safety of government and contractor personnel, through September 30, 2020. These amounts may be reduced by tax credits available to the contractor.
Under these circumstances, the employee would likely be entitled to use the Emergency Paid Sick Leave for the first two weeks of leave, or they can use prior accrued, unused paid leave through their employer.
The Emergency Family and Medical Leave Expansion Act (effective April 1, 2020) provides up to 12 weeks of paid emergency FMLA leave for employees who have worked at least 30 calendar days for an employer of fewer than 500 employees when the employee is unable to work or telework because they need to care for a child when that child’s school or child care facility is closed or unavailable. Under this leave, the eligible employee would be entitled to 10 weeks of paid leave—after a two week waiting period—at two-thirds of their daily rate of pay up to $200 per day or $10,000 in total.
The CARES Act revises the Emergency Family and Medical Leave Expansion Act of March 18, 2020, to clarify that no employer would be required to pay more than $200 per day and $10,000 in aggregate for any employee who takes paid emergency FMLA.
Finally, if an individual was laid off on or after March 1, 2020, was employed by a covered employer (500 or fewer employees) for at least 30 of the last 60 calendar days, and was rehired by the employer, they become eligible for the emergency paid FMLA benefit.
Some resources for government contractors:
Class Deviation – CARES Act Section 3610 Implementation
Class Deviation—Progress Payment Rates
Implementation Guidance for Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act – Frequently Asked Questions
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