ATTENTION: ALL EMPLOYERS
DOL GUIDANCE RELEASED ON FEDERAL COVID-19 LEGISLATION
Employers have understandably been asking many questions about the Families First Coronavirus Response Act (“FFCRA”) – the federal bill passed by Congress last week which, once effective, will require certain employers to provide paid benefits to their employees in qualifying situations due to the COVID-19 crisis. (CLICK HERE to access our prior alert on the FFCRA.) The Department of Labor has now issued Q&As regarding the FFCRA, aiming to address some commonly asked questions. We anticipate additional guidance coming from the Department of Labor.
In this e-alert, we highlight key points from the Q&As, but a full version with additional information can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
- The DOL states that the effective date of the Act is April 1, 2020, not April 2, 2020.
- The 500 employee threshold is met if “at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States.” This includes “employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); 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 500 threshold excludes independent contractors. While temporary employees are included in the counting, the Q&As do not address who is paying benefits to the temporary employees. We believe this will depend how temporary employees are typically paid (directly through the employer or through a temporary agency).
- For companies with different entities, and for the purposes of the 500 threshold, the Department of Labor appears to say that employees of different entities will be counted: (a) if the entities are joint employers as set forth in the FLSA for purposes of the Emergency Paid Sick Leave Act (“COVID Paid Sick Leave”); and (b) if the entities meet the integrated employer test under the FMLA for purposes of the Emergency Family and Medical Leave Expansion Act (“COVID FMLA”). These are very fact-specific and complex analyses and it is advisable for employers to seek legal advice in this area.
- The 30 calendar day requirement for eligible employees requires that the employee be on the employer’s payroll for the last 30 calendar days immediately prior to leave. This includes time worked as a temporary employee.
- Employees who typically work overtime are entitled to include overtime hours under COVID FMLA. Under COVID Paid Sick Leave, overtime hours are also counted, but total hours are limited to 80 hours (e.g., if an employee works 50 hours per week, they are entitled to paid sick leave for 50 hours in the first week and 30 hours the next).
- The regular rate of pay under the FFCRA is addressed in the Q&As as “the average of your regular rate over a period of up to six months prior to the date on which you take leave. If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.”
- Employers should calculate the hours of leave for part-time employees based on the number of hours the employee is normally scheduled to work. If the part-time employee’s schedule varies, employers may use a 6 month average to calculate daily hours.
- The exemption for small employers with fewer than 50 employees is available when providing COVID Paid Sick Leave or COVID FMLA to employees for child-care related reasons would jeopardize the viability of the business. To fall under this exemption, businesses need to document why they meet certain criteria, none of which, unfortunately, is available yet. The DOL indicates that this will be set forth by the DOL in forthcoming regulations.
- COVID FMLA and COVID Paid Sick Leave are not retroactive. Any paid sick leave provided prior to April 1, 2020 will not count toward the COVID Paid Sick Leave requirement.
- For employees who are taking leave for child-care related reasons, they are entitled to a total of 12 weeks of paid leave under COVID Paid Sick Leave (first 10 days/2 weeks) and COVID FMLA (remaining weeks).
If you have any questions relating to these Q&As, or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are closely monitoring the rapidly changing legal landscape relating to this global pandemic. Please feel free to reach out to your NFC attorney or contact a member of our team.