26 March 2020

U.S. Department of Labor Issues Guidance Regarding Implementation of the Families First Coronavirus Response Act

***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***

Tuesday, March 24, the U.S. Department of Labor issued much-needed guidance to employers and employees regarding the Families First Coronavirus Response Act (FFCRA).  Among other things, the FFCRA creates paid emergency sick leave for employees impacted by COVID-19 through the Emergency Paid Sick Leave Act (EPSLA), and it amended the Family and Medical Leave Act (FMLA) to provide additional paid FMLA leave for specific COVID-19 related reasons.

The DOL guidance issued yesterday includes a Fact Sheet for Employees, a Fact Sheet for Employers, and a Q&A document.  Some of the most important information provided by the DOL includes:

  • Effective Date: The FFCRA becomes effective on April 1, 2020. This is a day earlier than the April 2, 2020 deadline required by the legislation.
  • Retroactivity: The requirements imposed on employers are not retroactive. An employer therefore cannot count paid leave given to an employee before the Act takes effect against the employee’s total allotment of FFCRA leave.
  • Employer Coverage: Employers with more than 500 employees are exempt from the FFCRA. When calculating the number of employees for FFCRA purposes, employers should take into account all full-time and part-time employees within the United States. The DOL has said this includes any employees on leave; temporary employees who are jointly employed by the employer and another employer; and day laborers supplied by a temporary agency. Further, the DOL clarified that it would continue to apply the integrated employer test under the FMLA to determine whether two or more entities are separate employers. As well, for employers that are close to the 500 employee count, the DOL indicated that the total employee count is made “at the time your employee’s leave is to be taken.”
  • Small Employer Exemption: Employers with fewer than 50 employees whose ongoing viability would be jeopardized if they were required to provide childcare-related paid leave should “document why [their] business meets the criteria set forth” by the DOL. That criteria is not yet available, but the guidance signals that DOL does intend to create an exemption when it issues regulations.
  • Calculating Hours for Part-Time Employees: Under the EPSLA and Expanded FMLA, part -time employees are entitled to the average number of hours they are normally scheduled to work in a two-week period. If employees do not have a normal schedule or their schedule varies, employers should use a six-month average to calculate average daily hours.  If the employee has not worked for the employer for 6 months, the hours should be based on the agreed upon schedule at the time of hire.  If that does not exist, then hours should be based on the hours per day the employee was scheduled to work over the entire period of employment.
  • Calculating Hours for Full Time Employees: Emergency paid sick leave for full-time employees is capped at 80 hours and Expanded FMLA pay is limited to 10 weeks. Both EPSLA and Expanded FMLA pay should include overtime hours, but premium pay is not required. For instance, if a full-time employee is scheduled to work 50 hours per week, that employee would receive 50 hours of EPSL at the regular rate for the first week and 30 hours of EPSL for the second. If the full-time employee’s hours vary, the employer should calculate hours using the same method it does for part-time employees with varying schedules.  All pay, however, remains subject to the daily and aggregate caps.
  • Expanded FMLA Eligibility: An employee is only eligible for Expanded FMLA leave if the employee was on the employer’s payroll as of March 2, 2020.
  • Regular Rate: For purposes of the FFCRA, the regular rate of pay used to calculate an employee’s paid leave is the average of the employee’s regular rate over the past six months (or the entire period worked for the employer if less than six months). Commissions, tips, and piece rates must be included.
  • “Ordinary” FMLA Remains Unpaid: FMLA leave is only paid when it is taken for qualifying reasons under the FFCRA. Employees are not entitled to pay when they take “ordinary” FMLA leave.
  • Posting: Employers must post a notice of employee rights under the FFCRA in a conspicuous place on their premises. Required postings, and an FAQ about the postings, can be found here:

Although this guidance fills in some of the holes in the FFCRA, there are still several gray areas.  Thankfully, the DOL announced that there will be a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.  DOL has also promised to issue regulations in April, and additional fact sheets later this week. Miller Johnson will continue to monitor developments in this area.

If you have any questions or concerns about whether or how your operations may be impacted by this guidance, please contact your Miller Johnson attorney.

Links to the documents discussed above can be found here: