DOL ISSUES IMPORTANT GUIDANCE REGARDING PAID LEAVE

On Tuesday, March 24, 2020, the Department of Labor (ÒDOLÓ) provided some guidance on the paid leave provisions of the Families First Act (the ÒActÓ). As addressed in prior alerts, employees may now take 80 hours of paid sick leave and 12 weeks of emergency Family Medical Leave Act (ÒFMLAÓ) leave to address Covid-19 related childcare and health issues. The DOL provided the following guidance for employers trying to comply with the Act:

  • The ActÕs paid leave provisions are effective as of April 1, 2020 and apply to leave taken from April 1, 2020 through December 31, 2020.

  • The DOL had previously noted that the Act would go into effect on April 2, 2020 but now has changed the effective date to April 1, 2020.

  • Regarding the 500-employee threshold, employers must look to how many employees that they have on the date when an employee requests emergency FMLA leave or paid sick leave.

  • If the employer has fewer than 500 employees on the date an employee requests leave, then the employer must comply with the Act.

  • Employers may include employees on leave and temporary employees when calculating whether the employer meets the 500-employee threshold to be covered by the Act.

  • Independent contractors cannot be counted toward the 500-employee threshold.

  • Employers with fewer than 50 employees may petition the DOL to be exempt from the paid leave and emergency FMLA requirements of the Act if paying the leave would place their business in Òjeopardy.Ó

  • For now, employers with less than 50 employees should ÒdocumentÓ why complying with the Act would place them in ÒjeopardyÓ and the DOL will issue regulations explaining how those employers may request to be exempt from the Act. The DOL has not provided guidance as to what smaller employers must prove to be exempt.

  • Employers should also be aware that employees who typically work more than 40 hours per week may take leave equivalent to their normal weekly schedule. By way of example, an employee could take 50 hours of leave during the first week of paid sick leave available under the Act and then 30 hours of leave during the second week for a total of 80 hours.

  • To calculate an employeeÕs rate of pay for paid sick leave or emergency FMLA leave, employers should use the employeeÕs average rate of pay for the past six months, including overtime pay, commissions and tips.

  • If the employee has worked for the employer for less than 6 months, then the employer may use the average rate of pay during the employeeÕs tenure with the company to determine the regular rate of pay.

  • Employers are not required to pay the premium rate for hours over 40 when an employee takes paid sick leave or emergency FMLA leave and the employee typically works in excess of 40 hours per week.

  • Employees may use the paid sick time and emergency FMLA leave in conjunction but may only take a maximum of 12 weeks of paid leave.

  • Employees may use the paid sick leave to obtain paid leave during the first ten (10) days of emergency FMLA leave, which an employer can designate as Òunpaid.Ó

  • An employer cannot deny their employee the 80 hours of paid sick leave or 12 weeks of emergency FMLA if the employer provided the employee with leave for reasons covered by the Act prior to April 1, 2020. This means...

  • Employees may still use FMLA to take unpaid leave for reasons other than to care for a child who is at home because the childÕs school or childcare center is closed.

  • Employees shall only receive paid FMLA leave if they are taking that leave to care for a child home from school or a childcare center because the school is closed and the employee cannot work or telework.

  • Employees hired by March 2, 2020 will be eligible for the paid leave required by the Act as of April 1, 2020.

  • Employees may take the paid leave if they worked for the employer for thirty (30) days prior to requesting the leave.

While the DOL provided some clarity regarding the Act, small businesses still need guidance about applying for an exemption from the Act. The DOL had promised regulations by today, March 25, 2020 but recently stated that regulations shall be released in ÒApril 2020.Ó Stay tuned as our office will continue to issue alerts as the DOL provides additional guidance regarding the Act. If you have questions, please contact PLDO Partner Matthew C. Reeber at 401-824-5105 or mreeber@pldolaw.com or PLDO Principal William E. O’Gara at 401-824-5117 or wogara@pldolaw.com.


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Employment Law Overview

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