SPECIAL FFCRA BULLETIN: CHANGES TO POSTER AND A FEW OTHER NOTEWORTHY UPDATES TO PRIOR DOL Q AND A’S

With the effective date of the FFCRA coming tomorrow, we wanted to call our clients’ attention to a few important last-minute changes.

 

SLIGHTLY REVISED FFCRA NOTICE:

 

With very little if any commentary, the DOL has apparently made a slight revision to the FFCRA Notice to be posted at employer worksites (and by email or company intranet posting to remote workers). The new Notice provides in the third bullet point under “PAID LEAVE ENTITLEMENTS” that employers must provide covered employees “Up to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5 below for up to $200 daily and $12,000 total.“ The prior version had started that bullet with the statement “Up to 10 weeks more of paid sick leave…,” which presumably could have been read to exclude any sick pay for that reason #5 (caring for a child home from school or daycare) for the first two weeks.

 

We suggest all clients make sure that they are using the most recent version of the Notice, which can be accessed here:

 

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

 

THE INTEGRATED EMPLOYER TEST MAY NOW BE USED TO CALCULATE THE 500-EMPLOYEE THRESHOLD FOR BOTH EPSLA AND EFLMA PURPOSES

 

We had pointed out in a prior bulletin that there was a puzzling anomaly in the DOL’s discussion of an employer being able to use the “joint employer“ or “integrated employer“ test for meeting the 500-employee threshold for FFCRA coverage. The prior DOL guidelines stated that the joint employer test could be used for purposes of both emergency paid sick leave and expanded family medical leave, but that the integrated employer test could only be used for determining whether an employer met the threshold for purposes of the expanded family medical leave act benefits, not the emergency paid sick leave obligation. The new guidance now harmonizes those tests to apply to both types of paid leave. A link to that updated Q&A can be accessed here:

 

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

 

CLARIFICATION OF THE INCLUSION OF COMMISSIONS, TIPS AND PIECE RATES IN THE “REGULAR RATE.”

 

DOL Q&A #8 has been modified to clarify the role of such additional forms of compensation in determining an employee’s “regular rate“ for purposes of the FFCRA. The former version simply said that “if you are paid with commissions, tips, or piece rates, these wages will be incorporated into the above calculation“ (the average of the employee’s regular rate over a period of up to six months prior to the commencement of leave.) The revised answer added this qualifier: “if you are paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.“ Thus, the manner in which an employer factors in tips for purposes of calculating a regular rate upon which overtime pay must be based in normal times would be the same one used to determine the applicable regular rate under the FFCRA. The link to that updated Q&A can be accessed here:

 

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

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Since legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.