The Department of Labor has issued new guidance on the paid sick leave and expanded FMLA provisions of the Families First Coronavirus Response Act. There are many things about which you need to be aware, some are clarifications and some are changes. We will not address all of the guidance but here are some highlights.

Effective Date.

The DOL states the effective date is April 1 – not April 2. (We cannot explain how the DOL has counted the days in this way but advise employers to accept this as the DOL will be the agency in charge of enforcement.)

The Guidance makes it clear the law is not retroactive.

Posters.

All private sector employers with fewer than 500 employees (and certain public sector employers) are required to “post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted” the notices prepared by the DOL. The DOL has prepared two notices for this purpose:

Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under FFCRA

Federal Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under FFCRA

You should download and post the appropriate poster(s) for your workforce. If you are teleworking, you are to provide notice in a reasonable means to communicate the information to your employees; for example, email, direct mail, posting to an accessible intranet. Currently, the posters are available only in English though the DOL is working on posters in other languages.

Get Used to the Lingo.

The DOL will be using the same terms for various things so we should all get used to it. As you know, the FFCRA has many acts within it; two of which we have been highlighting – the Emergency Paid Sick Leave Act (EPLA) (concerning the 80 hours) and the Emergency Family and Medical Leave Expansion Act (FMLEA) (concerning the 12 weeks).

In the new guidance the DOL is defining its terms:

‘Paid sick leave’ means paid leave under the Emergency Paid Sick Leave Act.

“Expanded family and medical leave” means paid leave under the Emergency Family and Medical Leave Expansion Act.

Do you Think You are Not Covered Because You Employ 500 or More Employees?

The DOL construes coverage very broadly. If you think you are not covered because you employ 500 or more employees, you should definitely review FAQ No. 2 on this topic. This addresses issues such as how you count employees (e.g., part-time, day laborers, etc.) and corporate structure issues (e.g., when two entities are considered a single employer).

Guidance regarding Part-Time Employees and Hours over 40 in a Week.

In FAQ No. 5 it addresses how to count hours worked by your part-time employees. This seems to be in line with the law previously addressed.

In FAQ No. 6, the DOL addresses overtime hours. It states:

the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. 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 capped at 80.

The FMLEA isn’t calculated based upon hours so it is different. The Guidance reads:

The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

More guidance is provided in the linked materials, including a reminder about the daily caps.

Can Employees “Stack” their Entitlement under the EPLA?

No. Under FAQ No. 9, the Guidance is clear that each employee gets only up to 80 hours of paid sick time.

Interestingly, in this discussion, the DOL converts the 80 hours to “two weeks – or ten days (80 hours for a full-time employee…)”. Be mindful of this. If your full-time employee is regularly scheduled to work 39 hours per week, it may be reasonable to assume their entitlement to paid sick leave is 78 hours – not 80 hours.

Many Unanswered Questions Remain.

The DOL is still going to issue regulations which will provide more answers. We anticipate this Friday but cannot be certain when it will be released.

One of the big questions outstanding is the treatment of small employers –those with fewer than 50 employees. It was touted those businesses would be provided some relief. In these FAQs, it was noted there would be a small business exemption if compliance “would jeopardize the viability of my business as a going concern.” The criteria for that phrase has not yet been released.

Other businesses are also looking forward to more specific guidance which may or may not be forthcoming; e.g., health care providers, those with multi-employer bargaining agreements, etc.

When further guidance is released, we will bring it to you.

By Kristen L. Brightmire and Rebecca D. Bullard
kbrightmire@dsda.com and rbullard@dsda.com