Labor Dept. Issues Guidance On Coronavirus Paid Leave Law

By Braden Campbell
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Law360 (March 24, 2020, 9:24 PM EDT) -- The U.S. Department of Labor issued guidance Tuesday to help workers and employers navigate the leave provisions of last week's coronavirus relief package, which makes many employers pay employees who can't work because of issues related to COVID-19.

The guidance, which includes fact sheets for employers and employees and a Q&A document, is meant to answer "critical questions" about the Families First Coronavirus Response Act, including which businesses are covered and how they should calculate workers' pay, the agency said.

"Providing information to the American workforce is a top priority for the Wage and Hour Division," DOL Wage and Hour Division Administrator Cheryl Stanton said in a statement.

The act, which the president signed into law on March 18, makes businesses with fewer than 500 workers provide emergency short- and long-term leave. The law takes effect April 1 and will expire on Dec. 31.

The law provides two weeks of time off at full pay to workers who can't work for various reasons related to the virus, including if they've been quarantined or have COVID-19 symptoms and are seeking a diagnosis. The law applies to part- and full-time workers, providing them as many hours off as they generally work in two weeks, up to 80 hours.

It also provides up to 80 hours at two-thirds pay for workers who need to care for a family member affected by the virus, and as many as 10 more weeks off at two-thirds pay to those who can't work because they need to care for a child whose school or care provider has closed.

Tuesday's Q&A guidance answers several questions workers may have about who the law covers and what it provides. It explains that the law applies to businesses with fewer than 500 full- and part-time workers in the U.S., including workers who are on leave and temporary workers or day laborers, but not independent contractors. A corporation will generally be considered a single employer, and all its workers will count toward the threshold, as will linked employers that meet the Family and Medical Leave Act's integrated employer test, which examines the degree of integration, the DOL said.

While the law does not exclude smaller employers, it directs the DOL to issue regulations exempting businesses with 50 or fewer workers if making them pay leave would jeopardize their business. Tuesday's guidance directs businesses that may seek an exemption to "document why your business with fewer than 50 employees meets the criteria set forth by the department, which will be addressed in more detail in forthcoming regulations."

The law requires businesses to calculate workers' leave and sick pay based on their "regular rate of pay." For workers whose pay fluctuates, the regular rate is their average weekly pay over the prior six months, including "all remuneration," including wages, tips and commissions, the agency said Tuesday. If the worker has worked less than six months, they must be paid based on their average earnings for the period they have worked, the agency said.

The guidance package released Tuesday also includes nearly identical fact sheets for employers and employees laying out various mechanics of the law, including the reasons they may take leave.

The agency will release a poster most employers must post in their workplaces later this week, as well as additional fact sheets and more Q&A guidance.

--Editing by Michael Watanabe.

Correction: An earlier version of this story misstated the law's effective date. The error has been corrected.

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