Posted on March 25, 2020 by sessionslegal | Categories: Employment
The Department of Labor (DOL) has answered many employer questions regarding the Families First Coronavirus Response Act. For the DOL's complete FAQ, please click here
. Below is our summary of some of the most important clarifications published by the DOL. Also, the required Notice Posting
can be found here
, and the DOL's FAQ regarding the Notice Posting can be found here
- What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?
The DOL has now clarified the effective date is April 1, 2020.
- As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?
You have fewer than 500 employees if, at the time your employee's leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes temporary employees who are jointly employed by you and another employer. Typically, a corporation (including its separate offices or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold.
The DOL has now clarified that two or more corporate entities are separate employers unless they meet the "integrated employer test" under the Family and Medical Leave Act of 1993 (FMLA):
(i) Common management;
(ii) Interrelation between operations;
(iii) Centralized control of labor relations; and
(iv) Degree of common ownership/financial control."
- How much will employees be paid while taking Paid Sick Leave or expanded FMLA Leave under the Act?
- Up to 80 hours of Sick Leave at the employee's "regular rate of pay" (which includes a 6-month average of non-discretionary bonuses/commissions) if an employee takes leave because he or she is unable to work or telework due to: (1) quarantine or isolation order related to COVID-19; (2) self-quarantine recommended by a healthcare provider due to concerns related to COVID-19; or (3) symptoms of COVID-19 while seeking medical diagnosis. Maximum benefit: $511 per day, or $5,110 total over the entire paid sick leave period.
- Up to 80 hours of Sick Leave at 2/3 of the employee's "regular rate of pay" (including non-discretionary bonuses- see above) if the employee is taking leave because he or she is: (1) caring for an individual who is subject to a quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise. Maximum benefit: $200 per day, or $2,000 over the entire two week period.
- Up to 10 workweeks of partially-paid expanded FMLA leave (for employees who cannot work or telework due to school closure) at 2/3 of the employee's "regular rate of pay" (including non-discretionary bonuses- see above). Maximum benefit: $200 per day or $12,000 for the twelve weeks that include both paid Sick Leave and expanded FMLA leave when on leave due to school closures.
- How much TOTAL PAID leave can eligible employees take under the Act?
An employee who cannot work or telework due to school closures may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. (Note that the leave entitlement protections are for 14 weeks; the pay is for 12 weeks). Employer-provided PTO/Vacation is in addition to Paid Sick Leave and Partially-Paid FMLA Leave.
- How do employers pay for this?
As described in our prior blog here, the Act grants a new tax credit to employers with less than 500 employees to cover the now-required payments to employees who take time off under the new law's emergency sick-leave and family-leave provisions. A small employer can collect a tax credit equal to 100% of qualified emergency sick-leave and family-leave payments made by the employer pursuant to the Act. The tax credits will be available beginning in Q2 2020 (since the effective date of the Act is April 2020) and ending December 31, 2020. The new credit is first used to offset the Social Security tax component of the employer's federal payroll-tax bill. Any excess credit is refundable, meaning the government will issue a payment to the employer for the excess. Please note: The credit is not available to employers that are already receiving the pre-existing credit for paid family and medical leave under Internal Revenue Code Section 45S.
- Does the Paid Sick Leave and Partially-Paid FMLA Leave apply to furloughed employees?
Good question. The DOL has not answered this yet.
It is our belief that employees who are already furloughed (i.e., on a leave of absence due to lack of work) will not be entitled to Paid Sick Leave or Partially-Paid FMLA Leave. Why do we think this? Because furloughed employees are not working due to the employer's decision there is not enough work; not due to the protected reasons outlined in the Act, such as illness or school closures. Also, to the extent furloughed employees have already applied for Unemployment Insurance (UI) Benefits or other government-provided relief, these employees will not be permitted to "double dip." However, stay tuned for additional updates from the DOL on this point.
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