Poster, New Effective Date, and Other FFCRA Guidance Released from the Department of Labor

By Blerina Kotori and Christopher Morehead

On March 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) announced its first round of published guidance to provide information to employees and employers regarding the protections and relief offered by the Families First Coronavirus Response Act (“FFCRA”). The DOL also released a poster summarizing employee rights under the FFCRA, a copy of which can be found here. As noted in our prior posts, FFCRA provides paid leave benefits in certain circumstances necessitated by COVID-19 for employees of private employers with fewer than 500 employees and for public employees.

Perhaps most importantly, the WHD’s Guidance first defines the FFCRA’s effective date as April 1, 2020—not April 2, 2020 as initially anticipated. The Guidance also clarifies that the FFCRA protections do not apply retroactively.

In addition, the Guidance addresses several notable questions, including determination of the number of employees for purposes of coverage, counting hours for part-time employees, and calculating wages payable to employees under the FFCRA. We have highlighted certain salient points below, but encourage all employers to become familiar with the Guidance over the next week as they prepare to provide and utilize FFCRA’s benefits. A link to the Guidance can be found here.

  1. How should employers count their employees for purposes of determining whether they are subject to FFCRA?

Employers should count employees at the time an employee needs to take leave under the FFCRA, and should include all full-time and part-time employees in the Unites States and/or any Territory in the possession of the United States. This number includes employees on leave, joint employees, day laborers, and other employees provided by temporary agencies. Independent contractors are not included, however, we caution employers that employees who are misclassified as contractors could raise the number of employees required to make an employer subject to FFCRA.  

The Guidance also states that two or more corporate entities are considered separate employers, unless they meet the integrated employer test under the FMLA, which may push the employee headcount to or over the 500 employee threshold.

  1. How do businesses with fewer than 50 employees take advantage of the small business exemption?

To elect the small business exemption, employers should document why their business meets the criteria set forth by the Department of Labor. This criteria will be addressed in more detail in forthcoming regulations.

Employers should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

  1. How do employers count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?

Employers should calculate hours of leave for part-time employees based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, employers may use a six-month average to calculate the average daily hours.

If the employee has not been employed for at least six months, employers must use the number of hours agreed upon between the employer and employee at the time of hiring.

In the absence of such agreement, employers 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 their employment.

  1. How much will employees need to be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?

The amount depends on the employee’s normal schedule as well as the reason why the employee is taking leave.

If the employees are taking paid sick leave because they are unable to work or telework due to (1) a Federal, State, or local quarantine or isolation order related to COVID-19; (2) advice of a health care provider to self-quarantine because of COVID-19; or (3) symptoms of COVID-19 while seeking medical diagnosis, the employee will receive, for each applicable hour, the greater of:

    • Their regular rate of pay,
    • The federal minimum wage in effect under the FLSA, or
    • The applicable State or local minimum wage.

The payment for these reasons is capped at $511 per day, or $5,110 total over the entire paid sick leave period.

If employees are taking paid sick leave because they are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for their child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, they are entitled to compensation at 2/3 of the greater of the amounts above, up to $200 per day, or $2,000 over the entire two-week period.

Employees may take both expanded family and medical leave, in which case, if eligible, they may take paid sick leave for the first 10 business days of that leave period, or they may substitute any employer-provided paid leave benefit.

For the following 10 weeks, the employees will then be paid no less than 2/3 of their regular rate for the hours they would be normally scheduled to work.

  1. When calculating pay due to employees, must overtime hours be included?

Yes, if the employee takes leave under Emergency Family Medical Leave (i.e., school closures), then the employer should count overtime hours the employee would normally have been scheduled to work, including overtime, subject to the daily caps. 

However the Emergency Paid Sick Leave portion of the FFCRA only requires that paid sick leave be paid up to 80 hours over a two-week period.

The DOL provides the following example: “An employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick leave is capped at 80.

Notably, payment for these types of leave does not need to include a premium for overtime hours.

  1. May employees take 80 hours of paid sick leave for self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?

No. Employees are entitled only to two weeks—or 10 workdays—of paid sick leave for any combination of qualifying reasons. The total number of hours for which employees receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act. 

  1. If employees need to remain home with their children because the school or place of care is closed, or child care provider is unavailable, do they get paid sick leave, expanded family and medical leave, or both?

Employees may be eligible for both types of leave, but only for a total of 12 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 10 workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the employee elects to use employer-provided leave. After the first 10 workdays have elapsed, the employee will receive 2/3 of their regular rate of pay for the hours they would have been scheduled to work in the subsequent 10 weeks under the Emergency and Family Medical Leave Expansion Act.

UPDATE: On April 2, we published DOL Announces Temporary Rules for FFCRA which provides updated information on this topic.

If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group.

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