Department Of Labor Issues Guidance for Emergency Paid Sick Leave and Emergency FMLA

As employers scramble to understand how to apply the Emergency Paid Sick Leave and the Emergency FMLA provisions of the Family First Coronavirus Response Act (Act), the U.S. Department of Labor (DOL) has issued its first guidance in the form of a Fact Sheet for Employees, a Fact Sheet for Employers, and a Questions and Answers document. All three documents can be accessed here.

The key takeaways from these initial guidance documents are summarized below.

30 Day Non-Enforcement and the Reality of Good Faith Errors

The DOL will observe a non-enforcement period of 30 days for employers who act reasonably and in good faith as long as the errors are corrected as soon as practicable. 

Effective Date and Impact of Leave Granted Prior to the Effective Date

The Act is effective April 1, 2020 and is not retroactive. It only applies to leave taken between April 1, 2020 and December 31, 2020. Paid leave granted by an employer prior to April 1, 2020 (even if related to COVID-19) will not satisfy the Act’s requirements of providing Emergency Paid Sick Leave. 

FMLA is Still Limited to Twelve Weeks 

The Act expands the reasons an employee can qualify for FMLA, but the maximum number of weeks of FMLA is still twelve.  

All Leave Under the FMLA is Not Paid

The Act mandates up to 80 hours of Paid Sick Leave for a broad set of circumstances related to COVID-19, but the circumstances under which an employee is eligible for paid FMLA are relatively narrow: the leave must be because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable due to COVID-19 related reasons. 

Calculating 500 Employee Coverage Limit

The Act covers only employers who have fewer than 500 employees. The guidance suggests that the employer calculates whether it has 500 or fewer employees when an employee’s leave is to be taken (not when the Act becomes effective).  Employers should include employees on leave, temporary employees who are jointly employed by them and another employer (regardless of whether the jointly-employed employees are maintained on the other employer’s payroll); and day laborers supplied by a temporary agency.  

Corporate Entities are Separate Employers Unless they Meet the Integrated Employer Test

Unless separate corporate entities meet the integrated employer test, they are considered separate employers. The integrated employer test considers: (i) common management, (ii) interrelation between operations, (iii) centralized control of labor relations, and (iv) degree of common ownership/financial control.

Calculating an Employee’s Regular Rate when Paid by Commissions

For employees paid by commissions or piece rates, the regulate rate of pay is calculated by using the average pay over the prior 6 months.