The U.S. Department of Labor (“DOL”) issued its “first round” of guidance on the Families First Coronavirus Response Act (“FFCRA”) on March 24, in the form of Q&A. The DOL indicated that it will be issuing additional guidance on a “rolling basis” to help people prepare for the law to go into effect on April 1, 2020. A model notice is expected to be published on March 25, and the DOL will also issue additional Q&A and fact sheets this week.
A few key points from the March 24 Q&A:
- Effective date of the paid leave provisions of the FFCRA is April 1, 2020, and it applies to leave taken between April 1 and December 31, 2020.
- Whether an employee has fewer than 500 employees is determined at the time the employee’s leave is to be taken.
- When counting employees for this purpose, employees who are on leave and temporary employees should be counted.
- For employers that consist of separate entities, the FMLA “integrated employer” test applies; if the entities are an integrated employer, then the employees of all of the entities that make up the integrated employer count.
- The DOL will be issuing regulations that set out the criteria for the “small business exemption” for employers with fewer than 50 employees.
- Employers seeking the small business exemption are instructed to document why the business meets the criteria (once we know what those criteria are), but should not send any materials to the DOL.
- Overtime hours “normally scheduled to work” count when figuring the amount of hours that an employee works, but the maximum for which the employee may be paid under the paid sick leave provisions is still capped at 80 hours.
- The employee’s “regular rate of pay” for the purposes of the FFCRA is the average for the period of up to 6 months prior to the date the leave begins.
- If the employee is paid with commissions, tips, or piece rates, those will be included in calculating the regular rate of pay.
- If eligible for both Emergency Paid Sick Leave and Expanded Family and Medical Leave, the maximum amount of leave is still 12 weeks (2 for paid sick leave and then 10 more for FMLA).
- The paid leave requirements under the FFCRA are not retroactive.
One thing that has not yet been clarified is the applicability of the existing FMLA regulation under which an employer may lay off or terminate an employee during a leave period. Under the existing regulation, if the layoff or termination would have taken place even if the employee were still working at the time, the employee is not entitled to any further protection under the FMLA. There is a difference of opinion among those who are trying to interpret this new Act; some say that employers would still be required to pay the leave period if employment is terminated after the leave begins. However, the Q&A specifically states that the paid sick leave and expanded FMLA requirements are not retroactive, so at least for now, it appears that if someone is laid off prior to the effective date of the Act, they would not be entitled to the paid leave. Hopefully this point will be further confirmed or clarified.
Here is a link to the full Q&A issued on March 24: https://www.dol.gov/agencies/
The DOL is also hosting an online dialogue through which individuals and businesses may submit questions through March 29, and the DOL is participating in a Twitter chat at 2:00 pm on March 25. Here is a link to information about the online dialogue and Twitter chat: https://www.dol.gov/newsroom/
We will provide updates as new information becomes available. If you have questions related to employment law and your business, feel free to reach out to Charlot Wood at Cwood@belldavispitt.com.