DOL Provides Limited Guidance on New Families First Coronavirus Response Act
by Kathy D. Aslinger, Esq.
March 26, 2020
Although formal regulations will
not be released until sometime in April, the DOL issued some guidance this week
in the form of frequently asked questions (“FAQs”), providing answers to at
least some of the questions arising from the Families First Coronavirus
Response Act (“FFCRA”) passed last week. Here are some highlights of what we
(1) The paid leave provisions apply only to leave
taken between April 1, 2020, and December 31, 2020. Any leave taken before April 1 will not be
covered by the FFCRA. Thus, if an
employer voluntarily provided paid leave prior to April 1 for reasons that are
covered by the FFCRA, it may not take a tax credit for that paid leave.
Employers with common ownership may be joined
for purposes of determining the 500-employee threshold if their businesses are
interrelated. Two separate rules come
into play in determining whether each corporation or business entity is treated
as a single employer.
a. If two or more employers meet the integrated
employer test under the Family and Medical Leave Act (“FMLA”), then the
combined companies will be treated as a single employer for purposes of the emergency
family and medical leave expansion.
If two or more employers are considered joint
employers under the Fair Labor Standards Act (“FLSA”), then they will be
treated as a single employer for purposes of the emergency paid sick leave.
Controlled groups and affiliated service groups should carefully review these
rules to determine whether they will be combined for purposes of the FFCRA.
Employers with less than 50 employees may be
eligible to request an exemption from providing child-care related sick leave
and expanded family and medical leave if providing the leave would jeopardize
the viability of the business as a going concern. The DOL intends to establish criteria for
such an exemption in the coming regulations. Currently, it does not appear that
the DOL is providing an exemption to small employers for other types of sick
leave covered by the FFCRA.
If an employee normally works overtime, that
overtime must be included in the paid leave calculation under the FFCRA.
The rate of pay for purposes of determining paid
leave under the FFCRA is the regular rate over a period of up to six months
prior to the date an employee takes leave, and it includes commissions, tips,
etc. paid over that time period.
Paid sick leave is capped at 80 hours, even if
an employee has more than one qualifying reason for the leave. For example, if an employee takes 80 hours of
paid sick leave to care for a child whose school is closed, that employee
cannot take an additional 80 hours for his own self-quarantine that occurs
after the original leave.
Paid sick leave and paid expanded family and
medical leave may be stacked, such that an employee who takes time off to care
for a child whose school or place of care is closed due to COVID-19 may receive
a total of twelve weeks of paid leave (at 2/3 of the regular rate of pay).
You can read the full FAQs here. If you missed our initial
summary of the FFCRA, you access it here.
Please feel free to reach out to
us at 865-546-7311 if you have questions about how your business is impacted by
these new rules.