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The Department of Labor (DOL) has just issued some much?anticipated guidance regarding the Families First Coronavirus Response Act (FFCRA) signed by President Trump on March 18, 2020. This act contains a variety of measures, including an Emergency Paid Sick Leave Act and an Emergency Family and Medical Leave Expansion Act. The legislation outlined federal leave obligations for employers with fewer than 500 employees but left many unanswered questions about its practical application.

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The guidance now specifies that the paid leave provisions will take effect on April 1, 2020, rather than April 2, as had been widely reported. The guidance also clarified other issues, including the following:

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1. Calculation of the 500-employee threshold:

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The FFCRA stated that with regard to private employers, it applied only to those employers with fewer than 500 employees, but it provided no direction on how that number should be calculated. According to this guidance, this calculation is limited to the number of full-time and part-time employees an employer has within the United States, which includes any state of the United States, the District of Columbia, or any territory or possession of the United States. In making this determination, an employer should include employees on leave; temporary employees who are jointly employed by the employer and another entity; and day laborers supplied by a temporary agency. Workers who are independent contractors under the Fair Labor Standards Act (FLSA) are not considered employees for purposes of the 500-employee calculation.

The DOL clarified that typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted toward the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining both whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the <a href="https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch39.pdf" target="_blank" rel="noopener">integrated employer test</a> under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. Thus, different tests can be determinative under the two acts.

2. Clarification of the overlap of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act:

The guidance states clearly that while an employee may be eligible for both types of leave, the employee may not add paid sick leave on top of expanded FMLA. An employee may take both paid sick leave and expanded family and medical leave to care for a son or daughter whose school or place of care is closed, or if a child care provider is unavailable, due to COVID-19 related reasons. The total time available to the employee is 12 weeks. The employee may take paid sick leave, which is subject to statutory caps, for the first 10 days of the expanded FMLA leave period, or may substitute any accrued vacation leave, personal leave, or medical or sick leave the employee has under an employer’s policy. For the following 10 weeks, the employee will be paid for leave at an amount no less than 2/3 of the employee’s regular rate of pay for the hours the employee would be normally scheduled to work. The employee will not receive more than $200 per day or $12,000 for the 12 weeks, including both paid sick leave and expanded family and medical leave.

3. Leave that is paid early doesn’t count:

The FFCRA is not retroactive. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020. Even if employers have provided paid leave prior to that date, that does not satisfy their obligations to provide the total amount of leave required under the law beginning April 1, 2020.

4. Calculation of a part-time employee’s hours for purposes of paid leave:

A part-time employee is entitled to paid leave for his or her average number of work hours in a two-week period. Therefore, the employer should calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, the employer may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to 10 weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, the employer should use the number of hours that the employee was anticipated to work upon hiring.

5. Calculation of the 30-day requirement for expanded family and medical leave:

An employee is considered to have been employed by an employer for at least 30 calendar days if he or she was on its payroll for the 30 calendar days immediately prior to the day leave would begin. If the employee had been working for a company as a temporary employee and the company subsequently hired the employee on a full-time basis, the employee may count any days previously worked as a temporary employee toward this 30-day eligibility period.

The DOL will issue further guidance, including information on how employers who have fewer than 50 employees may apply for an exemption from the paid leave obligations.

Deborah S. Brenneman 513.352.6638 <a href="mailto:Deborah.Brenneman@ThompsonHine.com">Deborah.Brenneman@ThompsonHine.com</a>

Nancy M. Barnes 216.566.5578 <a href="mailto:Nancy.Barnes@ThompsonHine.com">Nancy.Barnes@ThompsonHine.com</a>

M. Scott Young 513.352.6617 <a href="mailto:Scott.Young@ThompsonHine.com">Scott.Young@ThompsonHine.com</a>

or any member of our <a href="https://www.thompsonhine.com/services/labor-amp-employment">Labor &amp; Employment</a> group.

ADDITIONAL RESOURCES

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force">COVID?19 Task Force web page</a> for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

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DOL Issues Employer Guidance on Implementing Families First Coronavirus Response Act

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