Department of Labor Online Dialogue about EFMLA.

The U.S. Department of Labor is hosting a national online dialogue, Providing Expanded Family and Medical Leave to Employees Affected by COVID-19, to help employers and workers understand their responsibilities and rights, respectively, under the Families First Coronavirus Response Act (FFCRA). The public, including employers, workers and their advocacy groups can participate in this national online dialogue through Sunday, March 29, 2020.

The Department’s Office of Compliance Initiatives (OCI), in partnership with WHD and the Office of Disability Employment Policy (ODEP), will host the online dialogue.

 Unemployment Tax Control Associates “Virtual Office Hours”

Roughly 148,000 people filed for unemployment benefits in Massachusetts last week, according to federal data published Thursday. During the same week a year ago, just more than 4,200 people in Massachusetts filed for unemployment benefits.

According to the Boston Business Journal , 16% of Massachusetts residents report losing their job since the start of the coronavirus outbreak, a stunning number considering where the economy was even at the start of this month. More stunning is that this poll was taken before non-essential businesses were ordered to close on March 24. 

Unemployment Tax Control Associates (UTCA) i s holding virtual “office hours” Friday, March 27, 2020 from 1:30 PM to 2:00 PM EDT where you can ask questions and gain a greater understanding of the claims process. 

Telemedicine Resources.

CIP has a Telemedicine Resources page on our website to assist our clients and friends. Insurance carriers have options for their subscribers to virtually meet with a doctor via their telemedine or telehealth options. Many carriers are waiving the office co-pay charges due to the COVID-19 pandemic.  

How do I count employees for FFCRA?

The DOL FAQ counts number of employees at the time the leave is taken.

Additionally, the DOL FAQ clarifies that 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.

The FLSA joint employer test is a fact-specific analysis that looks at a variety of relevant factors, including, without limitation, the extent to which each entity:
  • 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.

If two entities are considered joint employers, all common employees must be counted to determine whether the Emergency Paid Sick Leave and Emergency FMLEA benefits must be provided.

Two or more entities may also be considered one employer if they meet the “integrated employer test” under the Family and Medical Leave Act of 1993 (“FMLA”). Like the FLSA’s joint employer test, the FMLA integrated employer test is a fact-specific analysis that considers, without limitation, the following factors:

  • Interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment;
  • Common management, common directors and boards;
  • Centralized control of labor relations and personnel, i.e., hire and fire employees; and,
  • Common ownership and financial control.

Employers should consult an attorney before making a determination that they meet the “joint employer” or “integrated employer” test for purposes of the FFCRA as may have implications as to the applicability of other employment laws and/or legal requirements under other laws to its business.

DOL EFMLA Poster. We highlighted that the Department of Labor released the model Coronavirus Response Act poster i n a mailing yesterday.
The poster further highlights the $12,000 total cap placed on leave related to child care due to school/daycare closures. The DOL had previously made clear that an employee taking leave for this reason would be entitled to up to 12 weeks of leave, and $12,000 total, including both emergency paid sick leave and emergency family and medical leave. As of right now, the presumption is that regular FMLA and EFMLA time would run concurrently and would not subject employers to “stack” the leave entitlements to create a 24-week requirement. 
Covered employers must post notice of the FFCRA’s requirements in a conspicuous place on its premises.
The DOL has indicated that 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, but the DOL is working on translating the poster. Further, employers need not share the notice with laid-off employees or new job applicants, but it must give notice to new hires. All covered employers must post this notice even if their state provides greater protections than the FFCRA.