Category Archives: paid leave

REMINDER/IMPORTANT WARNING: July 1 Minimum Wage Increases in Illinois, Cook County and the City of Chicago…and Major Expansion of What Employers are Covered by Chicago’s Minimum Wage and Paid Sick Leave Ordinance

Contributed by Michael Wong and Sara Zorich, June 26, 2020

It’s that time of year and even a pandemic will not stop Illinois, Cook County and the City of Chicago from increasing their minimum wages on July 1, 2020 as follows:

Non-Tipped EmployeesTipped Employees
(Claiming the Tip Credit)
Illinois (all employers)$10.00 per hour$6.00 per hour
Cook County (employers in
municipalities that did not opt-out)
$13.00 per hour$6.00 per hour*
*Technically, the Cook County Minimum Wage Ordinance for tipped employees only increases to $5.30. However, since that is less than the new State minimum wage for tipped employees of $6.00, following the Cook County Minimum Wage Ordinance for tipped employees would be a violation of the Illinois Minimum Wage Law.

The July 1 change for the City of Chicago includes significant changes and new nuances that employers must be aware of, including different wage rates based on number and age of employees.

Large Employers
(21 or more employees)
Small Employers
(4 to 21 Employees; and Employers with 0 to 21 Domestic Workers)
Youth Workers
(Under 18, subsidized temporary youth employment program or transitional employment program)
Chicago$14.00 per hour$13.50 per hour$10.00 per hour
(same as State Min Wage)
Tipped Workers (Claiming the Tip Credit):Large EmployersSmall EmployersYouth Employers
Chicago$8.40 per hour$8.10$6.00
O’Hare and Midway Airport Certified Service Providers: $14.15 for non-tipped employees and $7.65 for tipped employees.

WARNING MAJOR CHANGES

However, the biggest change that employers must take note of does NOT pertain to the wage rate, but WHO will be subject to the City of Chicago’s Minimum Wage and Paid Sick Leave Ordinances. The Amendment to the Chicago Minimum Wage and Paid Sick Leave ordinance passed on November 11, 2019, redefines and expands what employers are covered. Currently, only employers who (1) maintain a business facility within the geographic boundaries of the city and/or (2) are subject to one or more of the City’s license requirements in Title 4 of the Chicago Code are subject to Chicago’s minimum wage and paid sick leave ordinances.

Chicago Minimum Wage

The City’s revisions that go into effect July 1 delete the requirement that an employer must have a business facility within the geographic boundaries of the City and/or be subject to the City’s license requirements to be covered. After July 1, the new definition for employer in the Chicago Minimum Wage and Paid Sick Leave ordinances will be “a person who gainfully employees at least one employee.”

Under this change, it can be interpreted that any employer who has an employee who performs at least two (2) hours of work within the geographic boundaries of the City, during any particular two-week period, must pay that employee the Chicago minimum wage for the time spent working within the City of Chicago.

Chicago Paid Sick Leave

Furthermore, the Chicago Paid Sick Leave ordinance uses the SAME definition for “Employer” as the Chicago Minimum Wage ordinance. This means that ANY employer who has ANY employee perform at least two (2) hours of work within the geographic boundaries of the City, during any particular two-week period, must document and record the amount of paid sick leave accrued by that employee for the time spent working in the City!

As an example of the potentially drastic nature of this change is this scenario: a Texas business sends its non-exempt employee to New York. The employee’s flight has a 2 ½ hour layover at O’Hare (O’Hare and Midway are both within the geographic boundaries of the City of Chicago). Technically under Chicago’s Paid Sick leave ordinance, the Texas business would have to record the amount of paid sick leave that the employee accrued during the 2 ½ hours that the employee was “working” in Chicago.

Any employer who has employees going into the City of Chicago, now MUST review and understand their obligations and whether they are subject to the Chicago Minimum Wage and Paid Sick leave ordinances after July 1.

Posters

For employers that are subject to the Cook County or Chicago minimum wage and paid sick leave ordinances, you will need to get the most up-to-date required poster, which can be found on the City of Chicago webpages for Minimum Wage and Paid Sick Leave in English or Spanish. Additionally, under Chicago’s new rules, employers will have to provide written notice each year with the first paycheck after July 1, whether by paper or electronic means.

The Cook County website has posters for Minimum Wage and Sick Leave that are only in English. Illinois has not updated its minimum wage poster (yet).

Employers that are unsure whether they must comply, what they must do to comply or that fail to implement compliant policies, including tracking sick leave accrual or carryover, should discuss options with employment counsel to mitigate exposure and minimize risk.

UPDATE – Does a “Shelter-in-Place” or “Stay-at-Home” Order Trigger Paid Sick Leave under the FFCRA?

Contributed by Jeff Risch and Peter Hansen, April 6, 2020

22175873 – a 3d human character a question mark

As we now know, the Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave — under the Emergency Paid Sick Leave Act (EPSLA) — for specified reasons related to COVID-19 starting April 1. These reasons include: because the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.

Many states and local governments have now mandated shelter-in-place (SIP) or stay-at-home orders.

The question facing many employers is whether these SIP orders trigger the paid leave requirements of the FFCRA.

The U.S. Department of Labor (DOL) published its FFCRA rules on April 6, 2020 providing a little more guidance on this issue. According to the DOL’s regulations: 

For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any federal, state, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a federal, state, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter-in-place, stay-at-home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.

In light of this authority, employers who continue to operate and have work available at their place of business need to carefully review the unique SIP order(s) impacting their operations and determine if there is any information advising categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter-in-place, stay-at-home, isolate, or quarantine and thereby causing those categories of employees to be unable to work even though work is available.  Of course, if an employee is able and allowed to work from home, then the employee would not be eligible for paid sick leave under the EPSLA. 

Again, it is critical for employers to evaluate the SIP order(s) covering their geographic footprint(s). Using Illinois as an example, the current stay-at-home order states that, “People at high risk of severe illness from COVID-19, including elderly people and those who are sick, are urged to stay in their residence to the extent possible except as necessary to seek medical care.”  However, questions abound. Does Governor Pritzker “urging” certain residents to stay at home render them eligible for EPSLA benefits if they cannot work from home? Notably, St. Louis County (MO) issued its own stay-at-home order with language similar to Illinois, and released an FAQ providing, in relevant part: It is highly recommended that high-risk populations (like persons over 60 years old or persons with underlying health conditions) should stay at home. 

Bottom Line:  An employee should not be eligible for the paid sick leave under the EPSLA if his/her assigned worksite closes down pursuant to an SIP order, or if it closes for any other reason, such as lack of business. However, employers should note that when they continue to operate, any employee who cannot work from home may be eligible for paid sick leave depending on the applicable SIP order in place expressly advising the employee to stay home due to specific instructions/restrictions. 

US DOL Releases Families First Coronavirus Response Act (FFCRA) Temporary Regulations and Updates FAQ’s

Contributed by Sara Zorich, April 3, 2020

The US Department of Labor (DOL) has posted its temporary regulations regarding the Families First Coronavirus Response Act (FFCRA).  The DOL is scheduled to post its published version on April 6, 2020.  The new regulations include parts 826.10 – 826.160 of the federal code and set forth the compliance requirements for employers with less than 500 employees for both the Emergency Paid Sick Leave Act (EPSLA) and the Expanded Family and Medical Leave (EFMLEA).

Additionally, the DOL continues to update its FFCRA FAQ’s and FAQ’s regarding posting requirements. At the time of this publication, those FAQ’s were most recently updated on April 2, 2020.

Employers subject to the FFCRA paid leave provisions must comply with these new regulations no later than April 1, 2020.  The DOL has a limited stay of enforcement regarding FFCRA compliance until April 17, 2020; however, the DOL has indicated that once it fully enforces the FFCRA, it will retroactively enforce violations back until the effective date of April 1, 2020, if employers have not remedied the violations.

As a reminder, employers covered by the FFCRA must post the following poster in a conspicuous place on its premises which can be satisfied by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. 

The FFCRA rules are complex and as COVID-19 stay in place orders, quarantines and directives change, those changes will impact an employer’s FFCRA compliance requirements.

DOL: FFCRA Leave Can Be Taken Intermittently By Agreement Of The Employee And Employer (In Some Circumstances)

Contributed by Brian Wacker, April 2, 2020

The Department of Labor has issued Temporary Regulations on the Families First Coronavirus Response Act (FFCRA) to address an issue already causing employers fits – namely, can employees use paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) intermittently?  

According to the DOL: it depends. 

The employer and employee must agree to intermittent leave.

First and foremost, the regulations are clear that “one basic condition” applies to all employees who seek to take leave under the FFRCA: “they and their employer must agree.” Without such an agreement, leave cannot be taken intermittently. While there is no requirement of a written agreement, it is advisable to have one.  Because the DOL has said that in the absence of a written agreement to intermittent leave, “there must be a clear and mutual understanding between the parties.”  In addition, the agreement must also be certain as to the increments of time in which the leave is taken intermittently. 

If the employer and employee agree to intermittent leave, when is it permissible under the FFCRA?

Intermittent leave is not permissible in all situations. 

If the employer and employee agree that the employee may telework (e.g., working from home), the employee is permitted to take intermittent leave (paid leave and/or expanded family or medical leave) in any agreed increment of time. This regulation is drafted intentionally broad to give employers flexibility to balance the needs of the teleworking employee and the “needs of the employer’s business.”

However, if an employee is still working at the employer’s jobsite, intermittent leave can only be taken “in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite.” Therefore, the regulations allow an employer and employee reporting to a worksite to “agree that the employee may take paid sick leave or expanded family and medical leave intermittently solely to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19.” 

However, intermittent leave is prohibited for employees who report to an employer’s worksite – even if the employee and employer agree – if the leave it being taken for any of the following reasons:

  • because the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • because the employee is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis;
  • because the employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

According to the Regulations, in these situations, intermittent leave is prohibited due to the “unacceptably high risk that the employee might spread COVID-19 to other employees when reporting to the employer’s worksite.”  So once an employee starts taking leave for any of these reasons, she must continue to take it until either the entire amount of provided leave is taken or until she no longer has a qualifying reason to taken leave.

Finally, the Regulations clarified that when permissible intermittent leave is agreed to by the employer and employee, “only the amount of leave actually taken may be counted towards the employees leave entitlements.” This means that if an employee returns from leave prior to expiration of their leave entitlement under the FFCRA, they are still entitled to use the remaining leave entitlement for a separate qualifying reason and are not otherwise prohibited from doing so by the Intermittent Leave regulations.

Prior to the issuing the regulations, the DOL issued guidance on these issues, which is consistent with the regulations, which can be found on the DOL website.

Does a “Shelter in Place” or “Stay at Home Order” Trigger Paid Leave under the FFCRA?

Contributed by John Hayes, March 31, 2020

Clock and cash

***Please see updated information on FFCRA regulations in our April 3, 2020 post.

A component of the recently passed Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 starting April 1. Additionally, many states and local governments have now mandated that non-essential businesses close and that its citizens stay at home, subject to certain exceptions, often referred to as Shelter in Place (SIP) or Stay at Home orders.

The question facing many employers now is whether these SIP orders trigger the paid leave requirements of the FFCRA.

The short answer is no.

On March 28, 2020 the U.S. Department of Labor (DOL) issued guidance to address, among other things, the FFCRA provisions related to paid sick leave or expanded medical leave, and whether employers are required to provide paid leave under its provisions if it is forced to close pursuant to SIP orders.  The specific questions that address the provisions for the closure of a worksite can be found on the DOL website and the relevant portions of the answers read as follows:

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

Bottom line: an employee is not eligible for the paid leave requirements of the FFCRA if their worksite closes down pursuant to an SIP order, or if it closes for any other reason, such as lack of business. However, employers should note that when they reopen and recall the affected employees to work, the recalled employees will be eligible for paid sick or family leave, if they meet the requirements under FFCRA. 

U.S. DOL Issues Guidance on the FFCRA “Small Employer” Exemption and “Viability” Definition

Contributed by Carlos Arévalo, March 30, 2020  

At the time of passage of the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) was tasked with issuing guidance on how a “small employer” might be exempt from providing paid sick leave and expanded FMLA benefits if doing so affected the business’s viability. The DOL has now issued guidance that addresses how this viability exemption can be met. Specifically, the DOL states that an employer, which includes religious or nonprofit organizations, with fewer than 50 employees (small business), is exempt from providing paid emergency sick leave and expanded FMLA paid leave pursuant to the FFCRA if doing so “would jeopardize the viability of the small business as a going concern” as determined by an authorized officer of the business. This determination is based on said officer finding that one of the three following conditions exists:

  • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and causing the small business to cease operating at a minimal capacity;  
  • The absence of employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

In sum, a small business may be exempted from FFCRA requirements if it can show that there is not enough revenue coming in to afford the expanded benefits, not enough skilled workers to do the specialized work critical to the business, or not enough available workers to do the work to keep the business going. 

It should be noted, however, that the DOL’s guidance on the small employer exemption also “encourages” employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.   Also, the DOL’s guidance may give the small business protection today, but time may change the analysis. 

While the initial say on the business’s viability is the employer’s call, employers will likely be scrutinized down the road. 

BOTTOM LINE:  Any business contemplating the “small employer” exemption to the FFCRA should seek advice and counsel from competent labor law counsel. 

U.S. DOL Issues Guidance on “Health Care Provider” and “Emergency Responder” Definitions for FFCRA Exclusions

Contributed by Steven Jados, March 30, 2020

Studio macro of a stethoscope and digital tablet with shallow DOF evenly matched abstract on wood table background copy space

On March 28, 2020, the U.S. Department of Labor (DOL) issued an update to its “Families First Coronavirus Response Act: Questions and Answers” to address, among other things, the Families First Coronavirus Response Act (FFCRA) provisions that allow employers of “health care providers” and “emergency responders” to exclude such employees from the FFCRA’s emergency sick leave and expanded FMLA provisions. The specific questions that address the provisions for health care providers and emergency responders shown in this article can be found on the DOL website and read as follows:

Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. 

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

The DOL also defined “emergency responder” for purposes of the FFCRA exclusions:

Who is an emergency responder?

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

Employers having employees fitting the definitions above need to remember that the health care provider and emergency responder exclusions are discretionary, not automatic. As such, and in order to avoid confusion (and litigation down the road), we recommend that employers that intend to use either exclusion provide a short, simple notice to their employees to inform them of the fact that because they are included within the DOL’s definition of “health care provider” and/or “emergency responder,” and are essential to the fight against COVID-19, they are not eligible for emergency sick leave or expanded FMLA leave under the FFCRA. Such a notice should also advise employees that these exclusions do not affect their eligibility for FMLA leave under the terms of the FMLA in place prior to FFCRA enactment.    

And all employers should bear in mind that the fairly expansive definition of health care provider discussed above does not apply to the definition of a health care provider who can certify an employee’s need for FMLA leave. That definition remains limited to, essentially, licensed doctors of medicine, nurse practitioners, and certain others as discussed in FMLA regulations in place prior to FFCRA enactment.

While there is some “chatter” from Washington concerning potential “hazard pay” for these workers, employers who use these exclusions are permitted to implement their own policies and benefit programs unique to their workers. Employers should also remember to keep in mind any local or state paid leave mandates currently in place or that may develop in the coming weeks.

Can Employers Use Existing Paid Leave Benefits to Offset Emergency Paid Sick Leave under the FFCRA?

Contributed by Suzanne Newcomb and Brian Wacker, March 27, 2020

On March 18, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). A component of the FFCRA is the Emergency Paid Sick Leave Act (EPSLA), which requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to the COVID-19 corona virus starting April 1. 

Generally, EPSLA requires covered employers to provide all employees with two weeks (up to 80-hours) of paid sick leave at the regular rate of pay when the employee is unable to work because he/she is quarantined pursuant with governmental or doctor’s orders and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. Additionally, if the employee is unable to work due to a bona fide need to care for someone else under quarantine, or a child whose school is closed for COVID-19 related reasons, then the employer is required to provide two weeks of paid sick leave at the rate of two-third (2/3) the employee’s regular rate of pay.

The question, however, for many employers is whether any employer provided, or local/state government mandated, paid sick leave policy or other paid time off (PTO) benefits can be used to meet the EPSLA mandate and if not, whether an employer can require employees to first use previously earned/accrued sick leave prior to availing themselves of this new ESPLA benefit. 

The answer to both questions is NO. The EPSLA states that an employer “may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.” The EPSLA does not expressly state paid sick leave in this limitation, but newly published guidance from the DOL clarifies that paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements. Accordingly, earned/accrued sick leave or other paid leave existing prior to April 1, 2020 cannot be used to offset or substitute for the mandates under the FFCRA.

Of course, existing employer provided, or local/state government mandated, paid sick leave or other PTO benefits can be used to cover absences that occur prior to April 1st or to extend the period of paid leave beyond FFCRA mandates. Employers may also choose to allow (but cannot require) employees receiving 2/3 pay under FFCRA’s paid sick leave or paid family and medical leave provisions to use existing paid leave to supplement the 2/3 pay up to the amount of the employee’s normal earnings.

Counting to 500 Under the Families First Coronavirus Response Act

Contributed by Peter Hansen, March 26, 2020

a 3d human character a question mark

As many of you know, employers with 500 or more employees are exempt from the Emergency Family and Medical Leave Expansion and the Emergency Paid Sick Leave provisions of the Family First Coronavirus Response Act (FFCRA). Now that the Department of Labor (DOL) released FAQs regarding the FFCRA, we know a bit more about how the DOL will count employees for the purpose of meeting the 500 employee threshold – including that it will apply the Fair Labor Standards Act’s (FLSA) joint-employer analysis and the Family and Medical Leave Act’s (FMLA) integrated employer test in making that determination. Now seems like as good a time as any for a brief refresher on the two tests.

FLSA Joint Employer Analysis

Under the FLSA, separate companies may become joint employers of an employee if both companies exercise control over the same employee. For example, say two companies benefit from an individual’s work but only one company designates the individual as their employee. To determine whether the two companies are the individual’s joint employer, the DOL would consider whether the second company exercises significant control over the employee’s work, including whether the second company:

  • hires or fires the employee;
  • supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;
  • determines the employee’s rate and method of payment; and
  • maintains the employee’s employment records.

Employers with 500 or more employees under the above FLSA joint employer analysis are not subject to either the FFCRA’s paid sick leave or paid FMLA leave provisions.

FMLA Integrated Employer Test

Under the FMLA, separate companies may be considered to be part of a single employer if they are an “integrated employer,” determined by considering the following factors:

  • The companies share common management;
  • The companies’ operations are interrelated;
  • The companies share control of labor relations; and
  • The companies share common ownership and/or financial control

Employers with 500 or more employees under the FMLA’s integrated employer test are not subject to the FFCRA’s paid FMLA leave provision – but, unless they have 500 or more employees under the FLSA’s joint employer analysis, may still be subject to the paid sick leave provision.

Each of the above tests are complicated, and the FFCRA remains subject to pending DOL guidance and regulations. As a result, any employers with questions or concerns regarding their joint employer or integrated employer status – or anything else relating to the FFCRA – should consult with counsel.

US DOL FFCRA POSTING NOTICE IS HERE!!!

Contributed by Julie Proscia, March 25, 2020

On March 25, 2020 the Department of Labor (DOL) released digital versions of the required notice of The Families First Coronavirus Response Act (FFCRA). Under the FFCRA every covered employer (covered employers include most public sector employers and all private sector employers with fewer than 500 employees) must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. Obviously, where should you post the notice if you are remote in whole or in part? According to the DOL, since many employers have all or part of their workforce working remotely an employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. Employers are not required to post the notice in multiple languages nor are they required to give the notice to job applicants. The notice only has to be given to current employees, as such you do not have to send the notice to recently laid-off individuals.