The U.S. Department of Labor (“DOL”) released new guidance on the Families First Coronavirus Relief Act (“FFCRA”), which was signed into law on March 18, 2020. (A summary of the law is here.) The DOL’s new resources are:
- A tip sheet for employees
- A tip sheet for employers
- A Q&A
Issues addressed in the guidance (many of which were addressed in our earlier FAQs) include:
Effective date of the FFCRA. The FFCRA and its requirements go into effect on April 1, 2020.
Counting employees under the FFCRA. In determining employee count, employers must examine whether, as of the time leave is to be taken, they employ fewer than 500 full- and part-time employees within the United States (including Washington, D.C. and any U.S. territory). All employees must be counted, including temporary employees (even if they are jointly employed by another entity or supplied by a temporary agency) and employees on leave.
Typically, a corporation is considered to be a single employer. If a corporation has an ownership interest in another corporation, the corporation must analyze whether the two corporations are joint employers under the Fair Labor Standards Act. If the corporations are joint employers, all their common employees must be included in the employee count.
Finally, individual entities are usually separate employers unless they meet the integrated employer test under the Family and Medical Leave Act (in which case employees of all entities should be counted toward the 500-employee maximum). This is a fact-intensive, case-by-case analysis. Consult with your employment attorney if you have questions whether your company is an integrated employer.
The FFCRA imposes a new sick leave requirement. The DOL confirmed that employers cannot reduce an employee’s paid sick time entitlement under the FFCRA once it goes into effect. In other words, the FFCRA imposes a new requirement on employers starting April 1, 2020 and any paid sick leave they provided before that date is not relevant when determining an employee’s entitlement to emergency paid sick leave.
Retroactivity of the FFCRA. The FFCRA is not retroactive (in other words, employees who were laid off before April 1, 2020 are not entitled to emergency paid sick or medical leave). Likewise, employers cannot receive a tax credit under the FFCRA for paid leave that was voluntarily provided prior to April 1.
Temporary employee eligibility. Any employee who has been on the employer’s payroll for at least 30 calendar days (whether as a temporary or regular employee) is eligible for emergency paid medical leave. (All employees are eligible for emergency paid sick leave.)
We will continue providing updates as more information becomes available.
