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Families First Coronavirus Response Act: First Round of Guidance

Yesterday, the U.S. Department of Labor’s Wage and Hour Division issued its first round of published guidance to inform employees and employers about the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act (Emergency PSLA) and the Emergency Family and Medical Leave Expansion Act (Emergency FMLA).

A brief summary of the first round of guidance is below.

  • The FFCRA’s paid leave provisions are effective on April 1, 2020 (not April 2, 2020, as originally anticipated) and applied to leave taken beginning April 1, 2020, through December 31, 2020.
  • An employer is under the 500-employee threshold if at the time the employee’s leave is to be taken, the employer employs fewer than 500 full-time and part-time employees within the United States. This includes employees on leave and temporary employees who are jointly employed by the employer and another employer.  
    • A corporation is a single employer and its employees must each be counted towards the 500-employee threshold.
      • Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the Fair Labor Standards Act (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 sick leave must be provided under the Emergency PSLA and the Emergency FMLA.
    • Two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act (FMLA).
      • If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of paid sick leave under the Emergency FMLA.
  • A small business may request an exemption from the requirements of the Emergency FMLA and the Emergency PSLA by documenting why their business with fewer than 50 employees meets the criteria set forth by the Department of Labor, which will be addressed in more detail in forthcoming regulations.
    • There is currently no mechanism for accepting these exemption requests.
  • The Emergency FMLA requires employers to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. However, the Emergency PSLA requires that paid sick leave be paid only up to 80 hours over a two-week period.
  • Under the FFCRA, the regular rate of pay used to calculate an employee’s paid leave is the average of the employee’s regular rate over a period of up to six months prior to the date on which an employee takes leave. The regular rate of pay includes commissions, tips and piece rates, but it does not include a premium for overtime hours.
  • If an employee is unable to work or telework because the employee is caring for a child whose school or place of care is closed or place of care is unavailable due to COVID-19 precautions, the employee may be eligible for paid sick leave under the Emergency PSLA and under the Emergency FMLA.
  • The requirements for paid sick leave under the Emergency PSLA and the Emergency FMLA are not retroactive.
  • For purposes of the Emergency FMLA, employees are considered “employed by their employer for at least 30 calendar days” if they are on their employer’s payroll for the 30 calendar days immediately before the employee’s leave begins.

The Department of Labor stated it will be issuing implementing regulations and publishing additional guidance and a workplace poster required for most employers later this week.

Please contact your KDDK attorney or any of the following KDDK labor and employment law professionals for additional information and individualized guidance on this or any related topic.

Jake R. Fulcher
Partner
jfulcher@KDDK.com
(812) 423-3183, ext. 2263
Mark A. McAnulty
Partner
mmcanulty@KDDK.com
(812) 423-3183, ext. 2233
Carrie Mount Roelle
Partner
croelle@KDDK.com
(812) 423-3183, ext. 2286
Olivia G. Robinson
Attorney
orobinson@KDDK.com
(812) 423-3183, ext. 2217
Nicholas J. Golding, Labor and Employment Law Attorney, KDDK
Nicholas J. Golding
Attorney
ngolding@KDDK.com
(812) 423-3183, ext. 2216
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