DOL releases first round of guidance on Families First Coronavirus Response Act

The U.S. Department of Labor put out the first round of guidance on the Families First Coronavirus Response Act (FFCRA) late yesterday, March 24, 2020, which included:

Below are the key takeaways from the guidance:

•  The paid leave provisions of the FFCRA will go into effect on April 1, 2020.
• The paid leave provisions are not retroactive. If an employer has provided employees with additional paid leave for a qualifying reason under the Emergency Paid Sick Leave prior to April 1, 2020, that cannot be subtracted from the 80 hours required by the Act. The Emergency Paid Sick Leave imposes a new leave requirement beginning April 1, 2020.
• For calculating whether a company has fewer than 500 employees, the number is based on how many employees the company has at the time the employee’s leave is to be taken. The count will include: full-time and part-time employees in the U.S. or any territory or possession of the U.S.; employees on leave; temporary employees who are jointly employed by the company and another employer; and day laborers supplied by a temp agency. The count does not include independent contractors or separate employers that do not meeting the integrated employer test under FMLA.
• For employers with less than 50 employees that would like to use the small business exemption (meaning applying the paid leave laws under the FFCRA would jeopardize the viability of the business), DOL stated that it will set forth the necessary criteria that must be met to qualify for the exemption in forthcoming regulations.
• Calculating what employees are to be paid while on Emergency FMLA or under the Emergency Paid Sick Leave is based on the employee’s regular rate of pay.