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March 25, 2020

Yesterday, March 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) published guidance to provide information to employees and employers regarding the paid leave requirements extended by the Families First Coronavirus Response Act (“FFCRA”).

The published guidance was provided in three separate documents: a Fact Sheet for Employees, a Fact Sheet for Employers, and a Questions and Answers document. These documents addresses critical questions, such as how an employer must count the number of their employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate the wages employees are entitled to under this law.

We encourage all companies to review all of the documents carefully in an effort to better understand how the FFCRA applies to their company and employees. For your convenience, our firm has identified several particularly important clarifications provided by the additional guidance documents as provided below.

  • The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020. This is opposed to previous guidance that the effective date would be April 2, 2020.
  • For the purposes of determining employee count, whether that be for the 500 employee threshold or the possible 50 employee exemption, the number is calculated at the time your employee’s leave is to be taken.
  • The exemption for small businesses (under 50 employees and extended benefits would jeopardize the viability of the business) is still unsettled in that the Department of Labor has not yet released the effectual regulations. However, Department of Labor does suggest that businesses should prepare documentation on how your business meets the criteria outlined in the FFCRA. They further instruct that no businesses should send any material to the Department of Labor for the purposes of seeking the small business exemption.
  • For purposes of the FFCRA, the regular rate of pay used to calculate employee’s paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave. If an employee has not worked for a current employer for six months, the regular rate used to calculate the paid leave is the average of the employee’s regular rate of pay for each week an employee has worked for the current employer. Regular rate includes commissions, tips, or piece rates, and these wages will be incorporated into the above calculation.
  • The six enumerated qualifying reasons for an employee to qualify for paid sick leave was further qualified by the requirement that the employee is unable to work or unable to telework. In other words, employers are only required to provide paid leave if the employee cannot work onsite or from home due to the Covid-19 related reasons provided by the FFCRA.
  • For the purposes of the expanded Family and Medical Leave Act (“FMLA”), the 10 weeks beyond the first two weeks (up to 80 hours) covered by the mandated sick leave, is only paid, in the amounts already defined, for the sole circumstance that leave is taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. All other circumstances provided for by FMLA remain unaffected and employers are not required to provide paid leave. 
  • All employers must publish a notice in a conspicuous place of its premises a notice of the FFCRA requirements.  The DOL will publish a model notice sometime today (March 25, 2020).
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