As required under the new law which we recently discussed here, the Secretary of Labor published the Notice (here for federal employees, and here for non-federal employees) that covered employers (i.e., those with fewer than 500 employees and not subject to the small business exemption discussed below) will need to post. If most employees are teleworking, an employer can satisfy this requirement by e-mailing it to employees or posting it on an employee information website. Employers are not required to provide the notice to employees who were recently laid off. Nor are they required to translate the notice into other languages, although the DOL intends to publish translations of the Notice in the near future.
The DOL also issued some interpretative guidance for employers on several issues:
- When does the FFCRA go into effect? The FFCRA takes effect on April 1, 2020, and will remain in effect until December 31, 2020.
- Do businesses with fewer than 50 employees automatically qualify for the small business exemption? No. The small business exemption is an exemption for which employers may be eligible if compliance with the FFCRA would jeopardize the viability of the business as a going concern. The DOL anticipates publishing guidance on the small business exemption in the near future.
- What if a state requires an employer to provide paid leave benefits beyond those required by the FFCRA? Employers must comply with the FFCRA’s notice requirements even if their state provides leave benefits above and beyond the leave provided by the FFCRA.
- Which employees get counted when determining whether an employer falls under the 500-employee threshold? Employers should count all full-time and part-time employees, including employees on leave and those who are jointly employed by the employer and another employer. Independent contractors should not be counted. A corporation that has multiple establishments will generally be considered a single employer.
Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the Fair Labor Standards Act (when considering the first two weeks of leave) or the Family Medical Leave Act (when considering the ten weeks of paid leave after the first two weeks of leave). Moreover, an employer that takes the position that it is a joint employer in order to exceed the 500-employee limit for the FFCRA could have that position used against them in other situations where being a joint employer designation might not be so desirable. Any employer falling into this “gray area” should consider talking to their employment lawyer first.
- In calculating the amount of pay due to employees, do we include overtime? It’s complicated. Under the Emergency Family and Medical Leave Expansion Act — which provides for up to 10 weeks of paid leave to an employee who is unable to work due to a need for leave to care for a child whose school or place of care has been closed — employers should pay the employee two-thirds of the regular pay (capped at $200/day) that the employee would have earned had he worked the number of hours that the employee would normally be scheduled to work. Hence, if the employee would have worked 50 hours and had a regular rate of $10 per hour, the employee would earn two-thirds times 50 times $10. However, since the employee would not actually be working, the employer would not be required to pay any time at the overtime rate.
However, the first two weeks of paid leave that are provided under the Emergency Paid Sick Leave Act — which are taken before the 10 weeks of paid FMLA leave — are limited to 80 hours of paid leave over the two-week period. Hence, the employee who regularly works 50 hours a week would get 50 hours of paid leave for the first week and 30 hours the second week. (Those employees who are entitled to extended FMLA leave would only get two-thirds of these amounts.)
- Are employees who have been furloughed entitled to leave under the FFCRA? No. Employees who have furloughed because there is no work are not entitled to Paid Sick Leave or extended paid leave under the FMLA as provided under the FFCRA. Less clear is whether an employee would be entitled to leave under the FFCRA if the employer has suspended operations and has no work for the employee but has nonetheless agreed to continue to paying the employees during the closure. At this point, the Department of Labor guidance has not specifically addressed this scenario.