3-27-20 Client Alert - Paid Sick and Family Leave Requirements Will Begin on April 1
Posted on March 27, 2020
United States Department Of Labor Announces That Paid Sick and Family Leave Requirements Will Begin On April 1
The United States Department of Labor has issued guidance regarding the Families First Coronavirus Response Act (the “Act”). As reported in our prior alert, the Act mandates that most private employers with fewer than 500 employees provide paid sick and family leave to eligible employees.
The guidance is provided in fact sheet and Q & A formats. A link to the guidance is https://www.dol.gov/agencies/whd/pandemic. This summary does not provide an exhaustive analysis of the guidance and all covered employers are encouraged to review the guidance in its entirety.
Most notably, the guidance states that the Act will become effective on April 1, 2020. The paid leave requirements are not retroactive.
The guidance provides information as to the Act’s coverage and the calculation of pay for eligible employees. For example, the guidance provides details as to how and when the 500 employee threshold is to be determined. The calculation is to be made at the time the employee takes leave. Included in the calculation are full-time and part-time employees, employees on leave, as well as temporary employees jointly employed with another employer and day laborers supplied by a temporary agency. While typically an entity will be considered a single employer, if two entities are found to be joint employers, all of their common employees will be counted in determining whether paid leave must be provided. Further, two or more entities will be considered separate employers for purposes of the family and medical leave expansion unless they meet the integrated employer test under the Family and Medical Leave Act of 1993. The analysis of whether an employer meets the “joint employer” or “integrated employer” tests is a complex, fact specific inquiry. Also provided is detailed direction as to how to calculate the amount of pay due to an eligible employee.
The guidance also states that businesses with fewer than 50 employees who believe that the Act will jeopardize the viability of their business as a going concern may seek an exemption from the requirements of the Act, in accordance with criteria that will be provided in forthcoming regulations.
The Department also released the poster which must be posted by covered private employers, which can be found at https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.
The guidance also describes the available penalties and enforcement mechanisms for violations of the Act. Employers in violation of the first two weeks of paid sick time or the termination provision are subject to the penalties and enforcement provided in Sections 16 and 17 of the Fair Labor Standards Act, which includes, among other things, an award of double damages and attorney’s fees. Violations of the paid family leave provisions will be subject to the enforcement provisions of the Family and Medical Leave Act. Finally, the guidance states that the Department will observe 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. The guidance does not state that the period of non-enforcement would apply to claims brought directly by employees.
Please contact your Woods Oviatt attorney or the attorneys below regarding COVID-19 related issues.
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COVID-19 Multidisciplinary Crisis Group Co-Leaders
Gordon E. Forth, Esq.
Chris R. Rodi, Esq.
Cell: 585- 472-6474
Government Business Regulations
John F. Liebschutz, Esq.
Employment and Labor
Gordon S. Dickens, Esq.
Lorisa D. LaRocca, Esq.
Donald (Dan) O’Brien, Esq.
Gregory G. Broikos, Esq.
Christopher R. Rodi, Esq.
Cell: 585- 472-6474
Katarina B. Polozie, Esq.
Liquidity - Capital Calls
Christian J. Henrich, Esq.
Liquidity - Credit Facilities
W. Stephen Tierney, Esq.
William F. Savino, Esq.
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Warren B. Rosenbaum, Esq.
Brian D. Gwitt, Esq.
Brian J. Capitummino, Esq.
Kristopher J. Vurraro, Esq.
Benjamin M. Keller, Esq.
Thomas M. DiPiazza, Jr., Esq.
Danielle B. Ridgely, Esq.
Family Wealth and Estate Planning
Philip L. Burke, Esq.
David P. Shaffer, Esq.