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DOL announces first guidance on paid leave under Families First Coronavirus Response Act
By Lauren Daming on March 25, 2020 at 10:40 AM

Magnifying glass looking at detailsThe Department of Labor (DOL) on March 24, 2020, released its first guidance explaining aspects of paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA). The DOL released fact sheets aimed at both employees and employers as well as a Q&A document and promised more guidance to come. The guidance discusses how employers and employees can “take advantage of the protections and relief” offered by the FFCRA’s Paid Sick Leave Act and Emergency Family and Medical Expanded Leave Act.

The guidance reiterates key aspects of the FFCRA and expands some issues related to implementation of the FFCRA’s paid leave. Notably, the guidance confirms the following:

  • Effective date: The act goes into effect on April 1, 2020, and covers qualifying leave taken between April 1, 2020, and Dec. 31, 2020. The effective date is one day earlier than the date most employers calculated as the effective date.
  • Small business exemption: Businesses with fewer than 50 employees that hope to take advantage of the small business exemption should “document why [the] business … meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.” The guidance advises small businesses “not to send any materials to the [DOL] when seeking a small business exemption.”
  • Part-time workers: Leave benefits for part-time employees should be calculated based upon the number of hours the employee is normally scheduled to work. If that number is unknown or varies over time, the calculation can be based upon an average over a six-month look-back period, the number of hours per week agreed upon at hire, or the average number of hours per day the employee has been scheduled to work during his or her employment.
  • Overtime: Overtime must be accounted for in calculating an employee’s paid leave, but an employee’s entitlement to paid sick leave is still capped at 80 hours over a two-week period. Additionally, the daily and aggregate dollar caps for employee pay still apply to both types of paid leave, and pay does not need to include a premium for overtime hours.
  • Calculation of the regular rate: The regular rate of pay for purposes of the FFCRA is the average of the employee’s regular rate of pay over a six-month look-back period preceding the employee’s leave (or over the employee’s entire employment, if less than six months). Tips, commissions, and piece rates are all considered in the calculation of the regular rate.
  • No double-dipping on paid sick leave: Each employee is entitled to a maximum of 80 hours of paid sick leave. An employee cannot take 80 hours of paid sick leave for one qualifying reason and then take additional paid sick leave for a different qualifying reason.
  • Benefits not retroactive: Paid leave under the FFCRA is not retroactive. Even if an employer has allowed an employee to take paid leave for a reason identified by the Paid Sick Leave Act prior to the FFCRA’s effective date, the Paid Sick Leave Act imposes a new leave requirement effective April 1.
  • Thirty-day eligibility period for expanded FMLA leave: Employees are considered to have been employed for at least 30 calendar days if they have been on the employer’s payroll for 30 calendar days immediately prior to the date the leave would begin. A worker who has been employed as a “temporary employee” who is then hired on a full-time basis may count the days worked as a temporary employee toward the 30-day eligibility period.
  • Calculating the 500-employee threshold: The 500-employee eligibility threshold is calculated as of the day the employee intends to take leave. The calculation counts both full-time and part-time employees, including employees on leave, temporary employees who are jointly employed by another employer, and day laborers supplied by a temp agency.

The guidance leaves many vexing questions unanswered, such as what constitutes a “quarantine or isolation order,” how intermittent leave should be handled, and the criteria for determining when a small business qualifies for an exemption. Apart from promising forthcoming guidance and Q&As on additional issues, the DOL has explained that it will provide the required notice poster no later than March 25.

Our Employment & Labor Practice Group is continuing to monitor these developments and is available to answer your coronavirus questions.

Link to COVID-19 Resources page

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