On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (“FFCRA”).  Relevant to employers, the FFCRA contains two separate, but related, provisions:  The Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act.  For a summary of the FFCRA, click here.  On March 24, 2020, the U.S. Department of Labor published its first round of guidance, providing at least some clarification for businesses and individuals on exactly how this new legislation will work in the real world.  The DOL issued three separate publications:

For the full text of the publications, click on the links above.  Here are some of the highlights:

1.  The FFCRA becomes effective April 1, 2020.

The Act becomes effective April 1, 2020.  Nearly everyone (including the authors of this article) thought that the effective date would be April 2, 2020.  Apparently, we were all off by a day. 

2.  We still do not have much guidance on how employers with less than 50 employees can seek exemption from the Act.

The FFCRA applies to all state and local government employers, regardless of size.  It applies to private-sector employers with fewer than 500 employees.  The FFCRA contains a provision allowing employers with fewer than 50 employees to seek exemption from the Act if compliance would jeopardize the viability of the business, but it is silent as to how exactly such a business should seek the exemption.  Many were hoping for some guidance from the DOL on this point, but we still don’t have it.  The latest publications provide only the following (somewhat unsatisfying) advice to small businesses:  “To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the DOL, which will be addressed in more detail in forthcoming regulations.”  Stay tuned.

3.  The DOL clarifies the interaction between paid expanded FMLA leave and paid sick leave.

Employees who have to stay home from work to care for a child whose school or place of care is closed may be eligible for both paid sick leave and paid, expanded Family and Medical Leave Act (FMLA) leave.  The interaction between the two has been a common source of confusion for many employers trying to understand their obligations.  The DOL clarified that employees may be eligible for both types of leave, but only for a total of 12 weeks of paid leave. Employees may take both paid sick leave and expanded FMLA leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial 80 hours of paid leave. This period thus covers the first ten workdays (2 weeks) of expanded FMLA leave, which are otherwise unpaid (unless the employee elects to use existing vacation, personal, or medical or sick leave under your policy). After the first ten workdays have elapsed, paid leave under the expanded FMLA kicks in. 

So, to summarize, for employees who qualify for both expanded FMLA leave and paid sick leave, the first 10 days are paid pursuant to the Emergency Paid Sick Leave Act, and the next 10 weeks are paid pursuant to the Emergency FMLA Expansion Act.

4.  The 500 employee threshold is clarified.

Many have been uncertain about how to count employees for purposes of determining whether a business has 500 employees.  The DOL clarifies that the count must be taken at the time the employee’s leave is to be taken.  Full-time, part-time, on-leave and temporary employees leased through a staffing agency all count towards the 500 employee threshold.

If separate companies are considered “joint employers” under the Fair Labor Standards Act, they should each count their joint employees towards the threshold.  In addition, if two entities meet the “integrated employer” test under the Family and Medical Leave Act, then all employees of the integrated employer will count towards determining coverage.  The takeaway here is that related businesses should consider whether they are able to combine their employee count so as to qualify for exemption from the FFCRA.

5.  The DOL addresses calculating pay for part-time employees.

A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Employers must calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, employers should use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that (if they qualify).

If this calculation cannot be made because the employee has not been employed for at least six months, employers should use the number of hours that the employer and employee agreed that the employee would work upon hiring. 

6.  When calculating pay, overtime is included – sort of…

The rules are slightly different with respect to expanded FMLA leave and paid sick leave under the Emergency Family and Medical Leave Expansion Act.

The expanded 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. 

On the other hand, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week, but will only have 30 hours of paid sick leave left for the second week because the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

With respect to both the expanded FMLA and the Emergency Paid Sick Leave Act, the employer need not pay overtime hours at a time-and-a-half premium.  Pay is calculated using the regular rate.

7.         The FFCRA is not retroactive.

The DOL simply states, without clarification, that the paid sick leave and expanded FMLA leave provisions of the FFCRA are not retroactive.  The application of this principle is easy enough with respect to pay in that, clearly, no covered leave need be paid prior to April 1.  But what about the duration of the leave itself?  Suppose that a parent stopped working on March 25 to stay home with a child out of school.  That parent need not be paid between March 25 and April 1.  Presumably, on April 1, paid leave kicks in for the next 80 hours, with expanded FMLA pay kicking in thereafter.  What is unclear, however, is whether the employee in question is entitled to 12 weeks of protected leave beginning on March 25 (the date the employee went out of work) or April 1 (the date the employee’s leave became protected).  Perhaps more guidance will be forthcoming.