COVID-19: DOL Issues Q&As Providing Guidance on New Paid Sick and Family Leave Law

These Q&As, while lacking the weight of statute or regulations, are useful tools for businesses navigating their new obligations and understanding DOL’s understanding of the law. Key points include:

• • The FFCRA applies to leave taken between April 1 (not April 2) and December 31, 2020. The FFCRA does not apply retroactively, and employers cannot seek credit for any leave granted prior to April 1.
  • A common concern for businesses is how to count employees for determining FFCRA coverage. DOL’s guidance provides:
  • The employee count should take place at the time the employee’s leave is to be taken. This indicates that employers can fall in and out of coverage obligations depending on changes to the size of their workforce during the April 1 to December 31 time period.
  • Employers should count full-time and part-time employees within the United States (and territories), including employees on leave, jointly-employed employees, and day laborers provided by a temporary staffing agency. Independent contractors are not considered in the employee count.
  • Employers should evaluate employee count using the joint employer standard of the Fair Labor Standards Act and the integrated employer test of the Family and Medical Leave Act.
  • Employers anticipating seeking the small (fewer than 50 employees) business exemption should document their reasoning for why they satisfy the criteria but should not submit materials to DOL to seek an exemption. This issue will be the subject of forthcoming regulations providing additional clarity on the exemption requirements.
  • The employee’s regular rate of pay to calculate the paid leave is the average of the employee’s regular rate over a six-month period prior to the taking of the leave. If the employee has not worked for all six months, the regular rate is an average of the regular rate for each week the employee worked for the employer. Commissions, tips, and piece rates need to be included in the calculation.
  • Overtime hours must be included if the employee was non-exempt and regularly scheduled to work more than 40 hours in a work week.
  • Employees who qualify only get a total of up to 12 weeks of leave under the FFCRA – they do not get two weeks of paid sick leave and an additional 12 weeks of paid family leave. And, remember, employees only get the leave for up to 12 weeks to the extent that qualifying conditions remain in place.

You can read all the Q&As here. It is important to remember that the information DOL provided there is not binding, but informative, and courts may take a contrary interpretation. DOL will continue to provide additional materials in response to the FFCRA, including regulations and a model notice poster.

You can also read more about FFCRA in a previous article we authored.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Jonathan Krause is a partner in the Litigation Department at Klehr Harrison.