DOL Provides Guidance on Families First Coronavirus Response Act
Contact Clara (C.B.) Burns, Charles C. High, Jr., Michael D. McQueen and Gilbert L. Sanchez -
March 25, 2020
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Yesterday, the Department of Labor (“DOL”) issued guidance regarding the Families First Coronavirus Response Act enacted on March 18, 2020. The paid leave provisions go into effect on April 1, 2020 and will be effective through December 31, 2020.
The DOL clarified that leave under the emergency Family and Medical Leave Expansion Act (“emergency FMLA”) and Emergency Paid Sick Leave may be concurrent. However, only a total of twelve weeks of paid leave is available. If an employee qualifies for both forms of leave, the employee cannot take 12 weeks of emergency FMLA leave and then another 80 hours of sick leave. Employees may take both paid sick leave and emergency FMLA leave to care for a child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons. The DOL confirmed that leave taken under traditional FMLA remains unpaid.
Further, the Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus can cover the first ten workdays of emergency FMLA leave, which would otherwise be unpaid. An employee may also elect to use existing vacation, personal, or medical or sick leave under the employer’s policy to cover the initial ten-day period which is unpaid. Following the initial ten-day period, employers will be required to pay 2/3 of the employee’s regular rate of pay for the subsequent ten weeks of leave under the emergency FMLA. Paid sick leave and emergency FMLA is not retroactive and will be available to employees beginning April 1st. But leave granted prior to the effective date cannot count towards the sick leave requirements under the paid sick leave and emergency FMLA leave.
According to the DOL, employers have fewer than 500 employees if, at the time leave is taken by an employee, the employer has fewer than 500 full-time and part-time employees within the United States. Employees that are on leave, temporary employees, and day laborers obtained through a temporary agency should be included in this calculation. Independent contractors are not considered employees for the purpose of the 500-employee threshold.
The DOL has not yet issued regulations regarding the small business exemption. However, the DOL advises that employers should document the reasons for meeting the criteria which will be delineated in forthcoming DOL regulations. Employers should not send any materials to the DOL, at this time, when the employer seeks the small business exemption for paid sick leave and emergency FMLA, but should document the employer’s basis for believing it is entitled to the exemption.
Because the paid leave provisions of the Families First Coronavirus Response Act take effect next week, employers need to determine whether they are covered employees under the Act. If you have any questions about the DOL’s guidance, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.
The DOL clarified that leave under the emergency Family and Medical Leave Expansion Act (“emergency FMLA”) and Emergency Paid Sick Leave may be concurrent. However, only a total of twelve weeks of paid leave is available. If an employee qualifies for both forms of leave, the employee cannot take 12 weeks of emergency FMLA leave and then another 80 hours of sick leave. Employees may take both paid sick leave and emergency FMLA leave to care for a child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons. The DOL confirmed that leave taken under traditional FMLA remains unpaid.
Further, the Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus can cover the first ten workdays of emergency FMLA leave, which would otherwise be unpaid. An employee may also elect to use existing vacation, personal, or medical or sick leave under the employer’s policy to cover the initial ten-day period which is unpaid. Following the initial ten-day period, employers will be required to pay 2/3 of the employee’s regular rate of pay for the subsequent ten weeks of leave under the emergency FMLA. Paid sick leave and emergency FMLA is not retroactive and will be available to employees beginning April 1st. But leave granted prior to the effective date cannot count towards the sick leave requirements under the paid sick leave and emergency FMLA leave.
According to the DOL, employers have fewer than 500 employees if, at the time leave is taken by an employee, the employer has fewer than 500 full-time and part-time employees within the United States. Employees that are on leave, temporary employees, and day laborers obtained through a temporary agency should be included in this calculation. Independent contractors are not considered employees for the purpose of the 500-employee threshold.
The DOL has not yet issued regulations regarding the small business exemption. However, the DOL advises that employers should document the reasons for meeting the criteria which will be delineated in forthcoming DOL regulations. Employers should not send any materials to the DOL, at this time, when the employer seeks the small business exemption for paid sick leave and emergency FMLA, but should document the employer’s basis for believing it is entitled to the exemption.
Because the paid leave provisions of the Families First Coronavirus Response Act take effect next week, employers need to determine whether they are covered employees under the Act. If you have any questions about the DOL’s guidance, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.
