DOL Issues Fact Sheets and Q&A for Paid Sick Leave and Expanded FMLA Leave

In a news release issued March 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) published its first guidance on the Families First Coronavirus Response Act (FFCRA). You can see the news release here. The WHD published a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers (Q&A) document. The Fact Sheets appear to combine both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act and may need to be corrected. We will concentrate on the Q&A document as it answers some of the questions many of you have regarding the two new statutes.

First, the effective date.

The FFCRA stated that the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act would be effective “not later than” April 2, 2020. The Q&A now makes it clear that the FFCRA will be effective on April 1, 2020 and end on December 31, 2020.

How do employers count the 500-employee threshold?

According to the Q&A:

You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship).

In addition, the Q&A makes it clear that the “integrated employer test” under the FMLA will apply to determine if related employers are counted as a single employer.

Many of you have asked how to obtain the small employer exemption contained in the FFCRA. The Q&A states that you should document why your business meets the criteria that will be set forth by the WHD in forthcoming regulations but you should not send any materials to the DOL when seeking the exemption.

The Q&A also makes it clear that employees are entitled to only two weeks or 10 days of paid sick leave total. The Q&A also explains that if your child is home because her school or child care provider is closed due to COVID-19:

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 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.

The Q&A also makes it clear that any leave given before the effective date of the FFCRA does not count toward FFCRA leave and that the FFCRA provides for new leave beginning on April 1, 2020.

Finally, the WHD made clear that this release is just the “first round” of information and compliance assistance. A workplace poster required for most employers will be published later this week, along with additional fact sheets and more Q&A. We will keep you updated on those developments.

If you have any questions or need clarification about how this guidance affects or clarifies the FFCRA, please call any member of the Warner’s Labor and Employment Practice Group.