The Wage and Hour Division of the U.S. Department of Labor (DOL) has issued guidance that provides answers to commonly asked questions that have resulted from the enactment of the Families First Coronavirus Response Act (the Act). We previously wrote about key provisions of the Act here.
Highlights of the DOL's guidance published March 24, 2020 include:
- Effective Date of the Act. The Act will take effect on April 1, 2020 (the "Effective Date") and will apply to leave taken between then and December 31, 2020.
- Retroactivity of the Act. Leave benefits under the Act are not retroactive, meaning they do not apply to leave taken prior to the Effective Date. Moreover, any paid leave that an employer provided to an employee prior to the Effective Date does not count against the leave entitlement for eligible employees provided under the Act.
- Calculating the Employee Threshold. The Act applies to employers with fewer than 500 employees in the U.S. or U.S. territories. This threshold should be calculated by counting all full-time and part-time employees, employees on leave, temporary employees, and employees who are jointly employed with another employer. Independent contractors under the FLSA are not counted. If an employer has separate establishments or sites, these should typically be counted together toward the employee threshold. The DOL will use the "integrated employer test" under the FMLA to determine if two or more entities are considered "separate" rather than a single employer.
- The Small Business Exemption. Businesses with fewer than 50 employees may be exempt from the Act's requirements if providing child care-related paid sick leave and expanded family and medical leave would jeopardize the viability of the business as a going concern. The DOL has not yet issued guidance for how it will determine whether employers qualify for this exemption. However, the DOL has instructed employers to maintain documentation in support of an exemption application. More guidance for small businesses is expected soon.
- Sick Leave Hours. Emergency Paid Sick Leave (EPSL) benefits for full-time employees are capped at 80 hours total over a two-week period, regardless of whether an employee normally works more than 40 hours in a workweek. Part-time employees are entitled to EPSL equal to the average number of hours they work in a two-week work period. If the part-time employee's hours vary, employers may use an average of the hours the employee worked over a six-month period. If a part-time employee has been employed for less than six months, employers should use the number of work hours the employer and employee agreed to upon hiring (and in the absence of such an agreement, use the average hours worked in all weeks since the employee's hiring).
- Twelve Weeks of Paid Leave. Employees may be entitled to leave under the EPSL and the Emergency Family and Medical Leave Act (EFMLA), but, at most, an employee is eligible for a total of 12 weeks of paid leave.
- Calculating an Employee's Regular Rate of Pay. To calculate an employee's regular rate of pay for purposes of determining how much pay is due to an employee taking leave under the Act, employers should generally average the employee's regular rate of pay over a period of six months prior to the date the employee takes leave (or as many weeks as the employee has been employed, if employed for less than six months). Employers must include tips, commissions, or piece rates in their calculation of an employee's regular rate of pay.
- 30-day Employment for EFMLA Entitlement. Employees are entitled to leave under the EFMLA if they have been employed by their employer for at least 30 calendar days immediately prior to the first day of the employee's leave.
- Workplace Poster. Pursuant to the Act, the DOL has published a workplace poster for private employers and federal government employers. Employers covered under the Act for the purpose of EPSL and EFMLA must keep these posters in a conspicuous place on their premises. Covered employers may satisfy this requirement by emailing or direct-mailing this notice to employees, or posting this notice on an employee information internal or external website.
While the DOL's guidance answers some initial pressing questions about the implementation of the Act, more guidance and implementing regulations are expected from the DOL soon. We will continue to monitor legislative and regulatory developments and will provide updates as more information is released.
For some answers to commonly asked questions regarding how to communicate with staff about COVID-19 challenges, click here. For additional information regarding COVID-19 legal issues, please visit Venable's COVID-19 Resources Page.
Employers with additional questions should contact Michael J. Volpe at MJVolpe@Venable.com, Nick Reiter at NMReiter@Venable.com, Allison Gotfried at ABGotfried@Venable.com, Teresa Biviano at TMBiviano@Venable.com, or any other Venable Labor and Employment Group attorney.