Yesterday, the Department of Labor (DOL) issued the much-anticipated “Employee Rights” poster or notice concerning the Paid Sick Leave and Expanded Family and Medical Leave components of the Families First Coronavirus Response Act (FFCRA).  Click here to access the poster.

Along with the poster, the DOL provided some much needed guidance on various aspects of the laws that remained unclear.  Click here to view DOL “Frequently Asked Questions.” Below are a few of the highlights from the “Frequently Asked Questions” issued by the DOL:

  • When does paid leave go into effect?
    • The paid leave laws go into effect on April 1, 2020.
    • Any paid leave provided to employees before April 1, 2020 does not count towards satisfying any obligations for paid leave under the FFCRA.
  • Does the FFCRA apply to laid off or terminated employees?
    • The paid leave laws only apply to current employees.
  • How do I count my employees to see if I have fewer than 500 employees?
    • 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 look at the number of employees as of the date an employee requests leave under the FFCRA. If you laid off the majority of your employees before April 1, then you may be covered by the FFCRA 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 FMLA or are considered “joint employers” under the FLSA. This is a fact specific analysis that looks 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 you calculate the regular rate of pay for purposes of providing paid leave for employees whose hours fluctuate, or receive tips or commissions?
    • You use the average regular rate based on the last six months prior to the commencement of leave. If the employee has not worked for the last 6 months, then you use the average regular rate of pay for each workweek they have worked prior to the start of leave.
    • If employees receive commissions or tips in addition to a direct cash wage, you must factor-in these amounts to determine their average regular rate of pay.
  • What happens if an employee qualifies for paid leave under both the Expanded Family and Medical Leave Act and the Employee Paid Sick Leave Act due to need to care for a minor child whose school is closed?
    • The employee is capped at a total of up to twelve weeks of paid leave under the Emergency Family Medical Leave Act.
    • The employee is also capped at 80 hours (for full-time employees) of leave under the Employee Paid Sick Leave Act.
  • Where do I post the Poster/Notice if all of my employees are working remotely?
    • You must place the poster in a conspicuous place on the employer’s premises. Placing the poster in a binder that is accessible by employee is insufficient.
    • Employers can satisfy this obligation by emailing or mailing the poster directly to employees or posting the poster/notice on the Company’s internal or external website.
    • Employers 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-line the DOL website.