The U.S. Department of Labor (DOL) has issued an “Employee Rights” poster or notice for the paid sick leave and expanded family and medical leave components of the Families First Coronavirus Response Act (FFCRA).
To access the poster, click here: https://bit.ly/39osdIy. Along with the poster, the DOL provided some much-needed guidance on various aspects of the laws that remained unclear. Below are a few highlights from the agency’s “Frequently Asked Questions.”
Does paid leave count toward laid-off or fired employees?
The emergency paid leave laws went into effect on April 1, 2020. Any paid leave provided to employees before that date wouldn’t count toward satisfying any obligations for paid leave under the FFCRA.
The paid leave laws apply only to current employees.
How do we count employees to see if we have fewer than 500?
You must count all employees—part-time, full-time, employees on leave, and temporary employees “who are jointly employed by you and another employer.”
You also must look at the number of employees as of the date an individual requests leave under the FFCRA. If you laid off the majority of your workforce before April 1, then you may be covered by the Act if you now have fewer than 500 employees.
What about separate subsidiaries or divisions all controlled by common ownership?
Two or more entities are separate employers unless they meet the “integrated employer test” under the Family and Medical Leave Act (FMLA) or are considered “joint employers” under the Fair Labor Standards Act (FLSA).
Your fact-specific analysis should look at a number of factors, such as: interrelation of operations, common management, centralized control of labor relations and personnel, and common ownership and financial control. In other words, call your employment lawyer!
How do we handle fluctuating hours or tips and commissions?
The DOL offers guidance on how to calculate the regular rate of pay for purposes of providing paid leave to employees whose hours fluctuate or who receive tips or commissions. Essentially, you should use the average regular rate based on the last 6 months before the leave commenced. If the individual hasn’t worked for you for at least 6 months, you should use the average regular rate of pay for each workweek she worked before the start of the leave.
If employees receive commissions or tips in addition to a direct cash wage, you must factor in the amounts to determine their average regular rate of pay.
What if the employee is eligible for multiple forms of paid leave?
The DOL’s guidance also addressed what happens if an employee qualifies for paid leave under both the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA) because of the need to care for a minor child whose school is closed:
- The employee is capped at a total of up to 12 weeks of paid leave under the EFMLEA.
- The employee is also capped at 80 hours (for full-time employees) of leave under the EPSLA.
What if all employees are working remotely?
The guidance offered this advice on where and how to display the poster or notice if all of your employees are working remotely:
- You must place the notice in a conspicuous place on your premises. Placing the poster in a binder that’s accessible by employees isn’t sufficient.
- You can satisfy the obligation by e-mailing or mailing the poster directly to employees or displaying it on your company’s internal or external website.
- You must provide this poster to any new hires.
The DOL likely will continue to issue alerts and further guidance on the FFCRA. All notice requirements are accessible on the agency’s website, www.DOL.gov.
For more information about the FFCRA, please contact attorneys Lisa Berg or Andrew Rodman with Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., in Miami, Florida, at lberg@stearnsweaver.com and arodman@stearnsweaver.com, respectively.