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 learned:

(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. 

(2)    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.

b. 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.

(3)    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.

(4)    If an employee normally works overtime, that overtime must be included in the paid leave calculation under the FFCRA.

(5)    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.

(6)    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.

(7)    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 on the Department of Labor's FFCRA page. Our initial summary of the FFCRA.

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.