DOL Posts Reassuring Guidance on Mandated Emergency Paid Leave for COVID-19

March 27, 2020

A set of 37 Q&As from the U.S. Department of Labor reassures large employers that separate divisions with fewer than 500 employees will not in most cases be subject to the two new emergency leave mandates that are in the Families First Coronavirus Response Act (FFCRA).

Generally, FFCRA mandates private-sector employers with less than 500 employees to provide eligible employees with 80 hours of emergency paid sick leave ("EPSL") for certain reasons related to COVID-19.  The law also requires these employers to provide up to 10 weeks of paid family leave ("PFL") when an eligible employee is unable to work (or telework) because a son or daughter's school or daycare has been closed or is unavailable due to COVID-19.

Corporations, including their separate establishments or divisions, will be considered a single employer for purposes of determining the under-500 employee threshold.  Where a corporation has an ownership interest in another corporation, the two corporations are still typically separate employers unless they are joint employers under the FLSA.  If two entities are found to be joint employers, all of their common employees must be counted towards the threshold.

Outlook:  In a continued response to the COVID-19 pandemic, the House is expected to consider phase IV and possibly phase V legislation, which may apply FFCRA's leave mandates to large employers with or without the benefit of a payroll tax credit.  DOL is expected to post more Q&As in the near future.