By: Brian R. CarnieChelsea G. CaswellA. Edward Hardin, Jr.Scott D. HuffstetlerErin L. KilgoreMichael D. LoweZoe W. Vermeulen, and David M. Whitaker

Late Tuesday afternoon, March 24, 2020, the U.S. Department of Labor’s Wage and Hour Division issued guidance in the form of 14 questions and answers on the new COVID-19 leave act.   Here is the link to the latest guidance. Some of the highlights are described below.

Although practitioners and commentators uniformly agreed that the act would take effect April 2, 2020, the DOL Q&As state that the “paid provisions are effective on April 1, 2020.”  The DOL confirmed that the act sunsets December 31, 2020.  Employers should make note.

The Q&As also address the issue of how to count employees for purposes of determining the 500 employee threshold.  Regarding the counting of employees of related companies, the DOL stated:

“Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.”

Another common question is how employers with 50 or fewer employees can qualify for the small business exception if providing the expanded leave would jeopardize the viability of the business as a going concern.  The DOL advised that employers should document why the business meets this criteria, but should not provide any documentation to the DOL at this time because more details regarding the criteria for this exemption will be included in the forthcoming regulations.

Finally, the DOL clarified that the new paid sick leave and expanded family and medical leave requirements are not retroactive.

If you have questions, please contact Kean Miller labor and employment attorneys, Brian R. Carnie (318.562.2652), Chelsea G. Caswell (225.382.3405), A. Edward Hardin, Jr. (225.382.3458), Scott D. Huffstetler (225.389.3747), Erin L. Kilgore (225.389.3712), Michael D. Lowe (318.562.2653), Zoe W. Vermeulen (504.620.3367), and David M. Whitaker (504.620.3358).