U.S. DOL Publishes Guidance Clarifying Paid Sick Leave and Expanded FMLA Under the Families First Coronavirus Response Act

On Tuesday, March 24, 2020, the Department of Labor published guidance in three separate documents related to the Families First Coronavirus Response Act (“FFCRA”), which goes into effect on April 1, 2020 through December 31, 2020. The guidance is provided in a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers Document.

The FFCRA requires certain employers to provide employees with Family Leave Emergency Pay (Amendments to FMLA), and Emergency Sick Pay (Additions to FMLA). On March 19, 2020, Williams Mullen published a Legal Alert that contained a chart outlining employer obligations under the FFCRA.  Prior to the guidance issued on March 24, it was unclear whether qualifying employees could receive only ten weeks or up to 12 weeks of paid leave to care for a son or daughter under 18 years of age if the child’s school or place of care has been closed due to reasons related to COVID-19. The guidance clarifies that eligible employees may receive pay for the full 12 weeks because this reason triggers employer requirements under both the Family Leave Emergency Pay and Emergency Sick Pay.

The Questions and Answers Document addresses the following issues with which many employers have struggled:

1. Question 2 – Because the FFCRA covers only employers with up to 500 employees, it is imperative for employers to know what employees to count.  The DOL responded that the following individuals are included to determine whether an employer exceeds the 500-employee threshold for the FFCRA’s provisions to apply: (i) employees on leave, (ii) temporary employees who are jointly employed, and (iii) day laborers supplied by a temporary agency.
   1. If two entities meet the Family and Medical Leave Act of 1993’s integrated employer test, then all of both entities’ employees combined count toward the 500-employee threshold.
   2. If two entities are joint employers of certain employees under the Fair Labor Standards Act, all common or joint employees are counted towards the 500-employee threshold.
2. Question 4 – The DOL has indicated that it will be addressing the small business exemption -- those employers with fewer than 50 employees -- in further regulation. No additional specific guidance was provided regarding this exemption other than for businesses to document why the business meets the exemption criteria. This documentation should not be provided to the DOL at this time.
3. Question 10 – Employees who must care for a child because the child’s school or place of care is closed may be eligible to have Emergency Sick Pay cover the first ten (10) days of expanded family leave, which is otherwise unpaid under the FMLA provisions of the FFCRA.  In other words, the employee can use paid emergency sick leave for the first 10 days/2 work weeks, and then paid (reduced pay) leave under the FMLA provisions of the Act for up to the remaining ten work weeks of needed leave.
4. Question 14 – Employers should determine whether an employee has “been employed for at least 30 calendar days” based on payroll. If the employee was on the employer’s payroll for the 30 calendar days immediately prior to the day the employee’s leave would begin, then they are eligible to receive Family Leave Emergency Pay.

The Fact Sheet for Employers provides the following critical guidance:

1. Employers will be required to post an FFCRA notice in a conspicuous location at each work site, and a model notice will be provided by the DOL no later than March 25, 2020.
2. Employers who violate the FFCRA will be subject to penalties and enforcement (for Emergency Sick Pay – penalties under the Fair Labor Standards Act; for Family Leave Emergency Pay – under the Family and Medical Leave Act). However, the DOL will observe a 30-day temporary period of non-enforcement from April 1, 2020 if an employer has acted reasonably and in good faith.

The Fact Sheet for Employees clarifies that most federal government employees are not governed by the amendments to the FMLA and are, therefore, not covered by Family Leave Emergency Pay. Additionally, it clarifies that employees may elect, but are not required, to substitute any pre-existing paid leave for Emergency Sick Pay.