MORE DOL HELP IS HERE: The DOL Publishes a Q&A on the FFCRA

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Patricia Tsipras

March 24, 2020

Yesterday, the United States Department of Labor (DOL) published a Q&A about the Families First Coronavirus Response Act (FFCRA).  The DOL provided guidance on several key issues:

  • Effective date of paid leave provisions:  April 1, 2020.  The provisions apply to leave taken between April 1, 2020 and December 31, 2020.
  • Calculating the fewer-than-500-employee threshold for compliance: 
    • Count all full- and part-time employees within the United States.  Count employees on leave.  Count temporary employees who are jointly employed by you and another employer.  Count day laborers supplied by a temporary agency.  Do not count independent contractors.
    • If a corporation has an ownership interest in another corporation and meets the joint employers test under the Fair Labor Standards Act, count all common employees.
    • If two entities are an integrated employer under the Family and Medical Leave Act, count all employees of all entities.
  • Businesses with fewer than 50 employees may be eligible for a small business exemption from the paid leave requirements if providing leave would jeopardize the viability of the business.  The DOL promised more information on this exemption in its regulations, which are forthcoming.
  • Part-time employees are entitled to leave based on average hours worked in a two-week period.  If average hours are unknown or vary, use a six-month average.  The part-time employee may take paid sick leave for that number of hours per day for a two-week period, and then may take expanded Family and Medical Leave for the same number of hours to up to ten weeks.
  • Include overtime hours in Family and Medical Leave expansion pay.  However, employers are required to pay only up to 80 hours of sick leave in a two-week period.
  • Hourly rate for leave:
    • If an employee takes leave because of a Federal, State, or local quarantine or isolation order related to COVID-19; because of self-quarantine advice from a health care provider due to concerns related to COVID-19; or because the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, the employee is entitled for each applicable hour the greater of the employee’s regular rate of pay, the federal minimum wage, or the State or local minimum wage, up to a maximum of $511 per day or a total of $5,110 in total for the entire paid sick leave period.
    • If an employee takes leave to care for an individual who is subject to a quarantine or isolation order or an individual advised to self-quarantine due to COVID-19; care for the employee’s child whose school or place of care is closed or unavailable due to COVID-19; or is experiencing substantially-similar conditions, the employee is entitled to 2/3 of the greater amounts listed above, up to a maximum of $200 per day or $2,000 over the entire two-week period.
    • If an employee takes expanded Family and Medical Leave, the employee can take paid sick leave for the first ten days, or may substitute accrued vacation, personal, or medical/sick leave under company policy.  For the following ten weeks, the employee is entitled to no less than 2/3 the employee’s regular rate of pay, up to $200 per day or $12,000 for the applicable 12-week period.

We can help you apply the FFCRA to your business.  Just give us a call.


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