DOL Guidance Regarding the Families First Coronavirus Response Act

On March 24, 2020, the Department of Labor’s Wage and Hour Division issued its first level of guidance on how the Families First Coronavirus Response Act will affect employers and employees. The DOL has made it clear that it will be issuing further guidance and also additional regulations related to the exemptions for employers with fewer than 50 employees, as well as health care providers.

The DOL has issued three documents: guidance for employers, guidance for employees, and a set of FAQs. Set forth below is a brief summary of the most instructive FAQs:

1. What is the effective date of the Families First Coronavirus Response Act (FFCRA)?
The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020. Note that leave/benefits provided before April 1 will not be covered.

2. How is the 500-employee threshold determined?
An employer has fewer than 500 employees if, at the time an employee’s leave is to be taken, the employer employs fewer than 500 full-time and part-time employees within the United States, including employees on leave; temporary employees who are jointly employed by you and another employer; and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). The FAQs state that “Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.”

3. Is there a small business hardship exemption for businesses with fewer than 50 employees?
Yes. To elect this small business exemption, an employer should document why the business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

4. When calculating pay due to employees, must overtime hours be included?
Yes. The Emergency Family and Medical Leave Expansion Act requires employers to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period.

5. What are employers required to pay employees while taking paid sick leave or expanded family and medical leave under the FFCRA?
It depends. If an employee is taking paid sick leave because the employee is unable to work or telework due to a need for leave because the employee (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) is experiencing symptoms of COVID-19 and is seeking medical diagnosis, the employee will receive his/her regular rate of pay. In these circumstances, the employee is entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

If the employee is taking paid sick leave because the employee is: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially similar condition that may arise, as specified by the Secretary of Health and Human Services, the employee is entitled to compensation at 2/3rd of the greater of the amounts above.

Under these circumstances, the employee is subject to a maximum of $200 per day, or $2,000 over the entire two week period.

If the employee is taking expanded family and medical leave, the employee may take paid sick leave for the first ten days of that leave period, or the employee may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following ten weeks, the employee will be paid for the leave at an amount no less than 2/3 of the regular rate of pay for the hours the employee would be normally scheduled to work, up to $200 per day or $12,000 for the 12 weeks that include both paid sick leave and expanded family and medical leave.

6. May an employee take 80 hours of paid sick leave for self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?
No. the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.

7. For childcare, is an employee entitled to paid sick leave, expanded family and medical leave, or both—how do they interact?
An employee may be eligible for both types of leave, but only for a total of 12 weeks of paid leave. The employee may take both paid sick leave and expanded family and medical leave to care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the employee elects to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, the employee will receive 2/3 of his/her regular rate of pay for the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act subject to the caps.

8. Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?
No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

9. Is all leave under the FMLA now paid leave?
No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

10. Are the paid sick leave and expanded family and medical leave requirements retroactive?
No.
Among the most helpful FAQs are #2 (how to count employees); #3 (how a small business with fewer than 50 employees can take advantage of the exemption), and #7 (how the two types of leave interact). We all still have questions but this guidance is helpful to navigate the fluid employee relations world at the moment.

See updated FAQs here.

If you have any questions concerning the DOL’s most recent guidance or workplace issues related to COVID-19, please contact Lisa Scidurlo or the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.

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