By: Elizabeth Bolduc, Esq.
Following our webinar yesterday (watch here), the U.S. Department of Labor issued guidance providing compliance assistance to employers and employees on their responsibilities and rights under the Families First Coronavirus Response Act (FFCRA). The guidance, includes:
New Effective Date:
The FFCRA’s paid leave provisions are effective on April 1, 2020, (Not April 2, 2020 like we all assumed) and applies to leave taken between April 1, 2020, and December 31, 2020.
The DOL has announced the paid sick leave and expanded FMLA leave requirements will not be retroactive. Accordingly, any paid leave provided before April 1, 2020 will not count towards the employer’s requirement under the new law and the employer will not be eligible for the tax credits.
Calculating The 500-Employee Threshold:
The threshold is calculated at the time your employee’s leave is to be taken. This means the threshold may need to be examined each time an employee takes leave. It includes all employees, including full-time, part-time, joint employed-employees, temporary employees, and employees on leave but not independently contracted within the United States, or any territory or possession of the United Stated.
Example: Company A has 503 employees. On April 1, 2020 Jack requests leave under the FMLA Expansion Act to care for his minor son because of a school closure and Jill request leave under the Emergency Paid Sick Leave Act. Both employees are out of luck because the Company has more than 500 employees. A week later the Company now has 499 employees due to terminations and quits. At such time, John request leave because he has been advised by his primary care physician to quarantine due to COVID-19, he now qualifies for such benefits.
As we suspected, the DOL guidance confirmed it will be using the integrated employer test under the Family and Medical Leave Act of 1993 to determine whether two or more entities is a single employer for purposes of calculating employees under the 500-employee threshold. The Integrated Employer test under the FMLA considers: common management, interrelation between operations, centralized control, degree of common ownership/financial control. 29 CFR 825.104(a)(2).
Small Business Exemption
The DOL stated that it will be providing additional regulations about the small business exemption. In the meantime, however, employers who employ less than 50 employees and believe that such leave will jeopardize the viability of their business, should gather documentation to demonstrate such. However, such documentation does not need to bee sent to the DOL.
Overlap between Sick Paid Leave and FMLA Expansion
If an employee takes paid sick leave and expanded FMLA leave to care for a minor child whose school or childcare is unavailable due to COVID-19, the employee may only receive a total of twelve weeks of paid leave.
“The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.”
See the full guidance documents here: