Department of Labor Issues Guidance as to Families First Coronavirus Response Act

While the Department of Labor (DOL) has not yet issued regulations, it has issued initial guidance to help employers understand who and what is covered under the new Families First Coronavirus Response Act (“FFCRA”). This initial guidance comes in the form of a FAQ and a Fact Sheet.

The new guidance assists employers by answering several key questions that have surfaced since the law was passed. The guidance details:
  • The FFCRA’s paid leave provisions become effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.
  • How to count employees when determining whether an employer meets the 500-employee threshold.
  • If two entities are considered a joint employer (as defined under the FLSA), all of their common employees must be counted in determining whether paid sick leave and emergency family medical leave must be provided.
  • If two entities are considered 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 expanded family and medical leave.
  • How to determine hours worked by a part-time employee.
  • When calculating an employee’s regular rate of pay for purposes of paid leave, the employer is to use the employee’s average rate of pay over a period of up to six months prior to the date the employee takes the leave. Commissions, tips, and piece rates, must be included in the regular rate calculation.
  • How the paid sick leave and the expanded family medical leave provisions work in conjunction with each other where an employee is home with his/her child because their school or place of child care is closed, or the child care provider is unavailable.
  • The various levels of pay associated with the specific qualifying reason for an employee’s leave.
Unfortunately, the new guidance does not provide much information for smaller businesses (less than 50 employees) that seek to utilize the exemption from providing paid sick leave or expanded family and medical leave because it would jeopardize the business’s viability. Smaller businesses should document why their business meets the criteria for exemption and await further guidance once the DOL issues regulations.
We will continue to monitor this developing situation as employers await the DOL’s regulations. Should you have any questions about the new guidance, or the FFCRA, feel free to reach out to any Frantz Ward Labor & Employment attorney.

Frantz Ward has established a Coronavirus Response Team to assist clients in navigating the multitude of issues presented by the current crisis. For assistance in addressing these issues or in developing other strategies to protect your business, please contact Frantz Ward Partners Brian Kelly or Chris Koehler and they will engage the appropriate members of the response team. 

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