The Families First Coronavirus Response Act (FFCRA) which was signed into law on March 18, 2020 directed the USDOL to issue regulations regarding the emergency paid sick leave and extended FMLA benefit provisions of the law. USDOL held a virtual town hall on Friday March 25, 2020 to hear the concerns of the business community in relation to implementation of the law, and to gain insight on how to best structure the upcoming regulations. While the USDOL has not yet issued the regulations, it has issued FAQs to address some common questions and concerns of employers and employees. The FAQs provide insight as to what will be included in the upcoming regulations.
500 Employee Threshold
The paid sick leave and expanded FMLA provisions of the FFCRA only apply to employers with fewer than 500 employees. Many employers sought guidance on aggregation rules and site-specific locations. The FAQs state that an employer will be deemed to employ fewer than 500 employees if it employs fewer than 500 full-time and part-time employees within the United States, including employees on leave; temporary employees who are jointly employed (regardless of whether the jointly-employed employees are maintained on only one or the other employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether the employer is the temporary agency or the client firm if there is a continuing employment relationship). Independent contractors are not included in the calculation.
If two entities are found to be joint employers under the FLSA, all of their common employees must be counted in determining whether paid sick leave must be provided under FFCRA paid sick leave and expanded FMLA provisions. In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are 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 under the Emergency Family and Medical Leave Expansion Act.
Small Employer (Under 50 Employees) Exemption
The FFCRA provides for an exemption from the paid sick leave and expanded FMLA provisions for small employers with under 50 employees when “the imposition of such requirements would jeopardize the viability of the business as a going concern.” The FAQs state that small employers should document why their business meets the criteria which will be set forth by the USDOL in more detail in forthcoming regulations. The FAQs direct employers not to send any materials to USDOL when seeking a small business exemption.
Calculation of Hours for Part Time Employees
Under FFCRA, a part-time employee is entitled to leave for his or her average number of work hours in a two-week period. The FAQs provide that employers should calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the employee’s scheduled hours are unknown or variable, the employer may use a six-month average to calculate the average daily hours. If the employee hasn’t worked for six months, an employer may use the number of hours that the employee agreed to work. If there is no agreement, an employer may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
The expanded FMLA provisions of FFCRA require an employer to pay an employee for hours the employee would have been normally scheduled to work, including overtime hours. The Emergency Paid Sick Leave provisions of FFCRA require that paid sick leave be paid only up to 80 hours over a two-week period.
Qualifying Reasons for Paid Sick Leave
An employee is limited to 80 hours of paid sick leave (or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) for any combination of qualifying reasons. That is, an employee may not take 80 hours of leave for his or her own self quarantine, and then an additional 80 hours for another qualifying reason under the paid sick leave provisions of FFCRA, such as caring for another quarantined individual.
May an Employee Take Both Paid Sick and Expanded FMLA
An employee may be eligible for both types of leave, but only for a total of twelve weeks of paid leave.
Already Used Leave Prior to FFCRA Effective Date
An employer may not deny an employee paid sick leave if the employer previously provided the employee paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect. The FAQs clarify that the Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.
The new laws are fast evolving and require coordination of both state and federal laws. Employers should consult labor and employment counsel for guidance on specific facts.
© March 25, 2020