U.S. Department of Labor Issues COVID-19 Question and Answers

The U.S. Department of Labor has just provided us with a Q & A sheet regarding the Families First Coronavirus Response Act here. https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

This document does not answer all of our questions, but it does provide us with some useful guidance. These are what I think are the most useful bits:

  • The FFCRA’s paid leave provisions are effective on April 1, 2020, not April 2 as we expected.
  • The DOL to set guidance for an exemption to the emergency FMLA leave (12 weeks) for businesses with less than 50 employees where providing the leave would jeopardize the viability of the business as a going concern. The DOL has instructed small businesses to document the reason that providing the leave would jeopardize the business as a going concern for now, and indicated that additional guidance would be forthcoming.
  • We calculate the number of employees at the time that the employee takes leave.
  • We are to include the following as employees: 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 you’re or another employer’s payroll); day laborers supplied by a temporary agency.
  • We do NOT include independent contractors under the Fair Labor Standards Act (FLSA),
  • The Q&A sheet provides some guidance on how to cumulate the employees of two related entities for purposes of determining the 500-employee threshold
  • When calculating pay due to employees under the emergency paid leave provision (80 hours or 2-week average), we should include overtime hours worked. For example, an employee who is scheduled to work 55 hours a week may take 55 hours of paid sick leave in the first week, but would only be allowed 25 hours in the second week, and no more than 80 hours total.
  • While the overtime hours are included, the pay rate does not need to include premium overtime pay.
  • Paid emergency sick leave (80 hours) and expanded FMLA (12 weeks) run concurrently and are NOT retroactive. You will not be able to count any leave allowed before April 1 against your obligations to provide paid leave under the FFCRA.
  • The “regular rate of pay” used to calculate leave pay and is the average of an employee’s regular rate over a period of up to six months prior to the date on which the leave is taken. If an employer recently cut pay or place employees on unpaid leave, the employer must look back at the employee’s total compensation for the last six months and divide it by all hours actually worked to determine the regular rate of pay.

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