As we previously reported, on March 18, 2020, the Families First Coronavirus Response Act ("FFCRA") became law implementing emergency paid sick leave and partially paid FMLA leave for certain absences related to COVID-19. On March 24, 2020, the U.S. Department of Labor ("DOL") released preliminary guidance regarding FFCRA compliance in response to the most frequently asked questions. The DOL stated that it expects to publish additional guidance in the future. This Alert outlines the DOL guidance and clarifications concerning some of the portions of the FFCRA.

The DOL Guidance – linked here https://www.dol.gov/newsroom/releases/whd/whd20200324 – addresses the following key issues:

  • To determine if an employer has 500 or fewer employees for application of the Emergency Paid Sick Leave Act, employers are instructed to count full and part-time employees, employees on leaves of absence, temporary employees, and employees jointly employed with another entity. The FLSA joint employer test should be consulted in determining if an entity is a joint employer with another entity. The link to the FLSA fact sheet and regulations highlights two types of joint employment: an employee provides services to two unrelated entities that each pay the employee wages; and an employee provides services to an employer and those services simultaneously benefit another entity. In the latter case, whether joint employment exists is measured by the following factors: who hires or fires the employee; who supervises and controls the employee's work schedule or conditions of employment to a substantial degree; who determines the employee's rate and method of payment; and who maintains the employee's employment records.
  • To determine employer size for emergency paid sick leave purposes, employers should count temporary employees and day laborers provided by a temporary agency, regardless of who pays their wages, towards the eligibility threshold.
  • To determine if an employer has 500 or fewer employees where there are related business entities for application of the amended FMLA portion of the FFCRA, employers are instructed to use the "integrated entity" test found in the FMLA regulations. The link to the FMLA regulations highlights the following factors in determining whether businesses are an integrated entity: common management; interrelation between operations; centralized control of labor relations; and degree of common ownership or financial control.
  • Small employers who believe the viability of the business would be threatened if forced to comply with the aforementioned laws are advised by the DOL to collect documentation of the expected impact pending regulations from the DOL. The guidance instructs employers not to send documentation to the DOL at this time regarding the viability exception.
  • Part-time employees' emergency paid sick leave amounts are dependent on how many hours the employee is "normally scheduled to work." Additional guidance is provided for workers with fluctuating hours or a short work history.
  • If qualified, eligible employees may use emergency paid sick leave to receive wages during the 10 day unpaid leave period of amended FMLA.
  • The DOL will not enforce the paid leave provisions of the FFCRA for 30 days (from April 1, 2020 – May 1, 2020) provided employers are acting reasonably and in good faith in complying with the law.
  • The number of hours an employee may take as paid leave under the FFCRA is capped at 80 hours total. Therefore, a full time employee is not entitled to 80 hours for self-quarantine and another 80 hours for another qualifying reason under the FFCRA.
  • The DOL Guidance explains how FFCRA paid leave interacts with unpaid FMLA leave.
  • The DOL Guidance clarifies that paid leave and paid sick time under the FFCRA are not retroactive. The FFCRA goes into effect April 1, 2020. Therefore, any sick leave and/or paid family leave granted prior to April 1, 2020 is not covered by the FFCRA.

The DOL Guidance does not address some important issues, such as whether the expanded leave benefit may be taken intermittently, how the expanded leave applies to married/civil union couples working for the same company, whether the expanded paid leave benefit is applicable to employees who were temporarily laid off (as opposed to permanently terminated), and questions regarding the specific notices that must be posted regarding rights under the FFCRA. Also unclear is whether employers must provide paid sick leave to employees who unilaterally decide to stay home because they have symptoms of COVID-19 yet are not seeking a medical diagnosis and have not been ordered to quarantine.

The DOL has opened an online portal for questions and comments about the FFCRA through March 27, 2020 at https://ffcra.ideascale.com/a/ideas/recent/campaigns/53788. Additional guidance from the Department of Labor concerning the FFCRA is expected shortly after the question and comment period close.

See Schnader's March 19 Client Alert on the FFCRA - https://www.schnader.com/blog/u-s-and-new-york-legislation-gives-workers-covid-19-paid-sick-leave-with-other-states-considering-related-bills/

Stay tuned as Schnader provides future updates on significant developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.