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New Guidance from Department of Labor – Released March 24, 2020

On March 24, 2020, the US Department of Labor (“DOL”) Wage and Hour Division issued new guidance related to components of the Families First Coronavirus Response Act (“FFCRA”).  The following are modifications and expansions set forth in the guidance which build upon our prior FFCRA update.

Start Date and Enforcement

New Effective Date
The paid leave provisions of the FFCRA, namely the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act “(EFMLEA”) go into effect April 1, 2020.

Delayed Enforcement
The DOL will delay enforcement of the FFCRA through April 17, 2020, provided the employer has made reasonable, good faith efforts to comply with the Act. After April 17, 2020, FFCRA violations will be fully enforced.

Counting Employees

The EPSLA and EFMLEA apply to employers with fewer than 500 employees at the time the employee’s leave is taken.  The new laws contemplate forthcoming regulations (presently expected sometime in mid-April) allowing employers with fewer than 50 employees to apply for a hardship exemption.  The DOL’s new guidance provides some clarity on how to count employees for these purposes.

FT, PT, Leave, Joint, and Temp All Included
When counting employees, include all part-time employees, full-time employees, employees on leave, employees jointly employed by you and another, temporary employees jointly employed by you and another (joint employees are to be counted regardless of whether they are maintained exclusively on another employer’s payroll), and day laborers supplied by a temp agency.

Joint Employers
When an employer is a joint employer with another, both companies count any shared employees toward their individual employee total for purposes of both the EPSLA and EFMLEA. The following factors should be considered when determining whether an employer qualifies as a joint employer:

        1. Possesses authority to hire or discipline the employee;
        2. Supervises and controls the employee’s schedule or conditions of employment to a substantial degree;
        3. Determines the employee’s rate and method of payment; and
        4. Maintains the employee’s employment records.

Integrated Employers
Integrated employers are two or more entities that are so intertwined that they are counted as one employer when tabulating employee numbers.  All collective employees of integrated employers are combined into one pool when deciding if that integrated employer is subject to the EFMLEA. Factors to determine if employers are integrated include:

        1. Common management;
        2. Interrelation between operations;
        3. Centralized control of labor relations; and
        4. Degree of common ownership or financial control.

Overtime in Calculating Pay

    • The EFMLEA requires payment for those hours the employee typically would have been scheduled to work, even if more than 40 hours. 
    • The EPSLA requires paid leave for no more than 80 hours over a two-week period.  For example, if an employee is normally scheduled to work 50 hours a week, that employee will be paid for 50 hours the first week and only 30 hours the second week.
    • IMPORTANT: Pay under the EPSLA and EFMLEA does not need to include a premium for overtime hours.

Sample Notice Poster

The DOL has produced a sample notice of the information that must be posted pursuant to EPSLA, along with a FAQ about how, when, and where to post the notice.

 Follow this link to review the new DOL guidance.  Regulations and other guidance regarding these new laws will continue to be issued by the DOL so please continue to watch for and read messages from our office so that we may keep you and your company up-to-date on new developments. 

As always, do not hesitate to contact our office with questions about how these new laws specifically impact your company and employees. 

Wed Mar 25, 7:50pm

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