By Joseph S. Brown, Esq.
Earlier today, the U.S. Department of Labor (DOL) published the notice poster regarding an employee’s rights under the Families First Coronavirus Response Act (FFCRA). The law requires that any private employer with less than 500 employees keep this notice posted in conspicuous places on the premises of the employer where notices to employees are customarily posted.
While employers ready themselves to comply with FFCRA, which becomes effective on April 1st (see below), there are many open questions and issues that will need to be clarified by DOL in the weeks to come. Yesterday afternoon, the U.S. Department of Labor issued Questions and Answers on the Families First Coronavirus Response Act (FFCRA), available here.
Some of the main takeaways from the DOL guidance are summarized below:
Effective Date is April 1, 2020: The DOL clarified that the FFCRA’s paid leave provisions are effective on April 1, 2020. The FFCRA has an effective no later than 15 days after President Trump signed it. He signed it late in the day on March 18. Doing the math, it seems that every single employment lawyer calculated a likely effective date of April 2. But DOL decided 14 days was the magic number and the law is effective on April 1.
Calculating the 500-employee Threshold: The FFCRA applies to businesses with 500 or fewer employees. The guidance makes clear that the employer should calculate its total headcount “at the time your employee’s leave is to be taken.” The following categories of employees should be counted:
- Full-time and part-time employees (independent contractors do not count);
- Employees on leave;
- Temporary employees who are jointly employed by you and another employer (regardless of whether the jointly employed employees are maintained on only your or another employer’s payroll); and
Day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship)…”
The guidance also suggests how to add employees of two entities for purposes of determining the 500-employee threshold.
Employers Should Count Overtime as Part of Pay: “When calculating pay due to employees, you must include overtime hours worked. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is limited to 80.”
Paid Sick Leave and FMLA Run Concurrently and are NOT Retroactive: Any leave taken before April 1 does not count against FFCRA leave entitlements.
- Small Business Exemption: If providing child care-related paid sick leave and expanded family and medical leave at your business with fewer than 50 employees would jeopardize the viability of your business as a going concern, you should document why your business with fewer than 50 employees meets the criteria set forth by the DOL, which will be addressed in more detail in forthcoming regulations.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Employment Practices team for guidance on this evolving issue at 716-849-8900 or visit our website at www.hurwitzfine.com