Families First Coronavirus Response Act: New Notice, Revised Effective Date and Q&As

The U.S. Department of Labor (DOL) issued new guidance regarding the Families First Coronavirus Response Act (FFCRA), including important definitions and clarifications. (Read our original Alert on the FFCRA here). The DOL has posted a "Families First Coronavirus Response Act: Questions and Answers" summary on its website. This is an attempt by the DOL to answer some preliminary questions related to the new FFCRA, which will bring expanded emergency family and medical leave, and paid sick leave, for many employees.

Effective Date

The FFCRA paid leave provisions will go into effect on April 1, 2020, and apply to leaves taken between April 1, 2020, and Dec. 31, 2020. This date is contrary to the initial FFCRA stated leave provisions "shall take effect not later than 15 days after the date of enactment," which occurred on March 18, 2020, and would indicate an April 2, 2020, effective date. The DOL did not specify why it chose to implement the law a day early, but we suspect that a date coincident was the start of the new calendar quarter was desirable.

Definition of fewer than 500 employees

Both the Family and Medical Leave Act (FMLA) Expansion and the Paid Sick Leave provisions of the FFCRA apply to private sector employers with fewer than 500 employees. The DOL's Questions and Answers guidance attempts to address these concerns, as follows:

• 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 any state of the United States, the District of Columbia, or any territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer's payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.
• Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards 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 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 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 integrated employer test under the Family and Medical Leave Act of 1993. If two entities are an integrated employer under 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.

These analyses address important issues regarding whether separate entities are counted as one employer for purposes of the new leave laws. DOL states that if two entities are found to be "joint employers" under FLSA, all of their common employees must be counted in determining whether leave must be provided. DOL then goes on to state that if two entities are an "integrated employer" under FMLA, all of the employees of the integrated employer will be counted in determining coverage for purposes of the FMLA Expansion provision.

Small Business Exemptions

The FFCRA authorizes the Secretary of Labor to grant exemptions to small businesses with fewer than 50 employees when the "implementation of the provisions of [the FFCRA] would jeopardize the viability of the business." To elect this small business exemption, DOL states that employers "should document why [their] business with fewer than 50 employees meets the criteria set forth by the department, which will be addressed in more detail in forthcoming regulations." DOL further advises that employers "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."

Required Notice

As part of FFCRA, each covered employer will be required to post a notice in conspicuous places on the premises of the employer where notices to employees are customarily posted. Please click here for the NOTICE. An employer can also satisfy the notice requirement by e-mailing or direct mailing the notice to employees or posting this notice on an employee information internal or external website.

Employers should note that DOL's "Families First Coronavirus Response Act: Questions and Answers" post is just an initial and preliminary assistance document from the Department of Labor. The DOL will most likely develop more formal guidance and regulations.

For more news and information regarding COVID-19, please see our COVID-19 Resources page.