After President Trump signed the Families First Coronavirus Response Act (FFCRA) on March 18, 2020, providing paid sick leave and expanded family and medical leave related to COVID-19 (commonly known as the coronavirus), employers have raised concerns and questions about how the law applies to them and their employees. The U.S. Department of Labor (DOL) is starting to answer some of those questions in its “first round” of guidance with two fact sheets (Employer Paid Leave Requirements and Employee Paid Leave Rights) and a Questions and Answers page.
Updated 3/27/20: After publication, the DOL added important new information to their Q&A page, addressing issues such as whether employees may take the new paid sick leave and/or emergency FMLA leave intermittently, employer obligations when a worksite is closed, and interactions between the new federal leaves and an employer’s existing leave entitlements, among others. Employers may want to bookmark and regularly review the Q&A page for updates.
Some Questions, Not All, Answered
Although some issues remain unclear, the initial DOL guidance is helpful. First, the law takes effect on April 1, 2020, not April 2 as originally expected.
The DOL also addressed the question of retroactivity, stating that the new law is prospective, not retroactive; it will only apply to leave taken between April 1, 2020, and December 31, 2020. The DOL clarifies that this means that if employers gave employees paid leave prior to April 1, 2020, for any reason identified in the new paid sick leave law, employers cannot count that towards the new paid sick leave requirements and deny them new paid sick leave — the FFCRA imposes a new leave requirement on employers that is effective April 1.
The DOL addressed another common question — how should employers count employees under the law, which applies to employers with fewer than 500 employees. The DOL states that employers have fewer than 500 employees if, at the time leave is to be taken, they employ fewer than 500 full-time and part-time employees in the U.S., including the District of Columbia and any U.S. Territories or possessions.
Employers should count:
- Employees on leave;
- Temporary employees who are jointly employed by you and another employer; and
- Day laborers supplied by a temporary agency.
However, workers who are independent contractors under the Fair Labor Standards Act (FLSA) (which is a different test than the California test) are not counted. Joint-employer rules under the FLSA and the “integrated employer test” under the Family and Medical Leave Act (FMLA) may apply for counting employees.
Employers should note the differences between federal and state joint employment and independent contractor rules. Employers wondering if they meet the 500-employee threshold should consult with legal counsel to determine whether they are covered under the federal law.
Employers can read more on the DOL’s Families First Coronavirus Response Act: Questions and Answers page.
The DOL also released the required poster (Spanish version) for private employers outlining the FFCRA’s paid leave requirements. Employers should download and post this notice with their other postings. The DOL also provides a separate FFCRA notice FAQs.
Although the FFCRA requires employers to post the notice in “conspicuous places on the premises of the employer,” the DOL stated that employers with remote employees can comply with this requirement by emailing or direct mailing this notice to their employees, or even posting the notice on an “employee information internal or external website.”
Although the DOL’s poster outlines the requirements for both the paid sick leave and emergency FMLA leave, it’s worth noting that for the qualifying reason of taking care of a child whose school is closed due to COVID-19, the DOL appears to combine the requirements of paid sick leave and paid emergency FMLA in a way that doesn’t clearly distinguish between the two, which may confuse employers and employees. Employers can refer to the DOL’s employer factsheet for clearer information.
Employers should keep in mind that this is a fluid situation. The DOL may provide an updated poster, but it’s unclear at this point whether that will happen. The DOL is expected to issue additional guidance and regulations soon. CalChamber will continue to monitor the circumstances and provide updates as they develop.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
Visit the CalChamber Coronavirus (COVID-19) webpage for more COVID-19-related federal, state and local resources, including CalChamber coverage.
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