DOL Q&A On Families First Coronavirus Response Act

Kollman & Saucier
Kollman & Saucier

The Department of Labor has issued guidance in the form of a Q&A regarding the Families First Coronavirus Response Act.

The DOL has also issued a Field Assistance Bulletin regarding the “temporary non-enforcement period.”

The guidance provides some clarification regarding the new leave law, including: 

Effective Date:  The paid leave provisions are effective April 1, 2020.  The Act was supposed to go into effect April 2 — or so we thought — because that is 15 days after President Trump signed the law.  The DOL says otherwise, so proceed with April 1 as the law’s start date. 

Counting Employees:  Employers should count the following to determine the FFCRA’s applicability:

  • full- and part-time employees
  • employees who are on leave
  • temporary employees who are jointly employed by the employer and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll)
  • 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)
  • count only these employees in the U.S. (includes U.S. territories and possessions) 

Related Businesses:  A corporation is a single employer and its employees must each be counted towards the 500-employee threshold.  However, if 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 leave must be provided under the emergency paid sick leave and expanded FMLA.  If multiple employers are joint employers under the FLSA, then both the emergency paid sick leave and expanded FMLA apply to those employers.

Entities are separate employers unless they meet the FMLA’s integrated employer test.  If two or more entities are an integrated employer, the employees of all entities will be counted to determine coverage under the FFCRA’s expanded FMLA provisions.  The factors considered under this test are:  common management, interrelation between operations, centralized control of labor relations, and degree of common ownership.

Small Business Exemption:  The DOL recommends that if you are seeking the small employer exemption, “you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.  You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.”

What if an employee normally works overtime?  You must include overtime hours in the determination of leave pay if an employee is normally scheduled to work more than 40 hours in a week.  However, “that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.”

Regular rate of pay for FFCRA purposes:  An employee’s regular rate of pay is the average of the employee’s regular rate over a period of up to six months prior to the date on which the employee takes leave.

If an employee has not worked for her current employer for six months, the regular rate used to calculate paid leave is the average of the employee’s regular rate of pay for each week the employee has worked for the current employer.

Using Leave for Multiple Reasons:  An employee “may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.”

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