March 23, 2020

The Wage and Hour Division is under increasing pressure to write rules and guidance implementing the paid family and sick leave portions of the virus relief package. A virtual town hall the agency hosted Friday for stakeholders on the process turned into 90 minutes of questions and comments, largely from the employer community. The law has multiple ambiguities that are left to WHD to clarify, and businesses want that info immediately to make operating decisions.

The rules may not come out until just before the law’s April 2 effective date. The agency, however, could start offering guidance this week on which small businesses and health-care providers will be exempt, and whether large businesses can count their contractors as employees to qualify for the 500-employee minimum for exclusion. Some companies may even do an about-face on their refusal to be called the employer of an affiliated entity’s workers (!).

Something to watch: How lenient will the WHD be with employers who aren’t complying with the paid leave amendments when the law takes effect? Enforcement didn’t come up at the town hall, but if the confusion on the call is any indication, it will eventually. The agency announced a non-enforcement period for good-faith employers during the first 30 days after the law takes effect, but this sea change to payroll processes will likely lead to all sorts of complications.

As WHD veteran Michael Hancock told me, “As sure as the sun comes up in the east, you’re going to find employers who aren’t complying with this.”

The entire article can be accessed here.