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On March 24^th, the Department of Labor (DOL) published guidance and answers to questions regarding the Emergency Paid Sick Leave and Expanded Paid FMLA COVID-19 Leave provisions.  The DOL also published the following written notice on March 25^th,  which must be posted by all employers.

When Does the Law go into Effect? April 1, 2020

What about employers with fewer than 500 employees that also have related business entities?

To determine if the new leave laws apply to employers with fewer than 500 employees, employers must count all fulltime, part time, and temporary employees (including any employees who are currently on leave) at the time the employee’s leave is taken. 

 If an employer has related business entities that have more than 500 employees in the aggregate, the new leave requirements may not apply– it only covers employers with fewer than 500 employees.  Whether employers can aggregate employees across different but related corporate entities entails a complex analysis under joint or integrated employer standards.  Employers should seek legal guidance in this regard as aggregating employees across entities requires navigating tricky waters.  Employers need to consider whether to characterize the related corporate entities as joint or integrated employers for purposes of the new paid leave law since this could cause unintended, adverse consequences in other employment-related areas.

Are there exemptions for employers with fewer than 50 employees?

There are possible exemptions for employers with fewer than 50 employees if providing the paid leave would jeopardize the viability the business as a going concern.  The DOL says that regulations will be coming out addressing this component of the law but provides no substantive interim guidance.  For the time being the DOL advises: 

 “To elect this small business exemption, you should document why your business with fewer than 50 employees meet the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations. You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.”  Needless to say, this is not terribly helpful in the absence of the promised “forthcoming regulations.”

How should an employer count work hours to determine paid leave?

In counting work hours to determine the amount of paid leave due an employee, an employer must include any overtime hours the employee would have been normally scheduled to work (subject to the 80 hour cap for Emergency Paid Sick Leave as well as the daily and aggregate dollar caps). 

If an employee’s work hours vary from week to week (i.e., no set normal schedule with OT hours) employers can use a 6-month average to determine the average daily hours.  If an employee has not worked with the employer for 6 months, then (a) use the number of hours it was agreed the employee would work upon hiring, or (b) if there was no agreed upon number of hours upon hiring use the average number of daily hours the employee worked during the entirety of his employment with the employer. 

Can employees stack emergency sick leave?

Employees cannot stack and take multiple 80-hours emergency paid sick leave for different reasons specified in the law.  This is a one-shot deal for each employee.

What is the total number of weeks available under the FFCRA?

The total number of leave weeks available to an employee between Emergency Paid Sick Leave (first two weeks) and Expanded FMLA for childcare purposes only (next 10 weeks) is 12 weeks.  An employee does not get two weeks of Emergency Paid Sick Leave and then, in a childcare situation, an additional 12 weeks of FMLA.  It’s one pot of 12 total weeks. The Expanded FMLA only applies to childcare situations when the employee must be off work to care for a child under 18 whose school has closed or childcare provider is unavailable for reasons related to the virus.

Can employers deny additional statutory sick leave?

If an employer provided paid leave to an employee for a reason covered in the Emergency Paid Sick Leave provision before the law went into effect an employer cannot deny the same employee additional statutory paid leave once the law goes into effect.  In other words, employers don’t get credit for any paid leave already provided to an employee before April 1.  As of April 1, such an employee then becomes eligible for the statutory leave that must be provided.

Is traditional FMLA also paid leave?

The Expanded FMLA provision does NOT make traditional FMLA leave paid leave.  The new paid leave component only applies to the childcare scenario (school closing, childcare provider unavailable).  If an employer has an employee who needs leave because he or she is suffering from the virus or needs to care for a family member with the virus, that employee would get paid for the first two weeks of the leave under the Emergency Paid Sick Leave provision but any additional leave time thereafter, up to ten weeks, (unless its needed to care for a child whose school has closed or child care provider is unavailable due to the virus) would be unpaid, traditional FMLA leave.