The U.S. Department of\nLabor issued guidance to help explain the leave provisions of the Families\nFirst Coronavirus Response Act (the \u201cAct\u201d). \nThe Act makes many employers pay employees who can’t work because of\nissues related to COVID-19.<\/p>\n\n\n\n
The guidance includes the following: In particular, the\nQ&A guidance answers the following questions: <\/p>\n\n\n\n Q1: What is the effective date of the Families\nFirst Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick\nLeave Act and the Emergency Family and Medical Leave Expansion Act?<\/strong><\/p>\n\n\n\n A:<\/strong> The FFCRA\u2019s paid leave provisions are effective on April 1,\n2020, and apply to leave taken between April 1, 2020, and December 31, 2020. Q2: As an employer, how do I know if my\nbusiness is under the 500-employee threshold and therefore must provide paid\nsick leave or expanded family and medical leave?<\/strong><\/p>\n\n\n\n A:<\/strong> You have fewer than 500 employees if, at the time your\nemployee\u2019s leave is to be taken, you employ fewer than 500 full-time and\npart-time employees within the United States, which includes any State of the\nUnited States, the District of Columbia, or any Territory or possession of the\nUnited States. In making this determination, you should include employees on\nleave; temporary employees who are jointly employed by you and another employer\n(regardless of whether the jointly-employed employees are maintained on only your or another\nemployer\u2019s payroll); and day laborers supplied by a temporary agency\n(regardless of whether you are the temporary agency or the client firm if there\nis a continuing employment relationship). Workers who are independent\ncontractors under the Fair Labor Standards Act (FLSA), rather than employees<\/a>, are not considered employees for purposes of\nthe 500-employee threshold.<\/p>\n\n\n\n Typically, a corporation (including its separate establishments\nor divisions) is considered to be a single employer and its employees must each\nbe counted towards the 500-employee threshold. Where a corporation has an\nownership interest in another corporation, the two corporations are separate\nemployers unless they are joint employers under the FLSA with respect to certain employees. If\ntwo entities are found to be joint employers, all of their common employees\nmust be counted in determining whether paid sick leave must be provided under\nthe Emergency Paid Sick Leave Act and expanded family and medical leave must be\nprovided under the Emergency Family and Medical Leave Expansion Act.<\/p>\n\n\n\n In general, two or more entities are separate employers unless\nthey meet the integrated employer test<\/a> under the Family and Medical Leave Act\nof 1993 (FMLA). If two entities are an integrated employer under the FMLA, then\nemployees of all entities making up the integrated employer will be counted in\ndetermining employer coverage for purposes of expanded family and medical leave\nunder the Emergency Family and Medical Leave Expansion Act. Q3: If I am a private sector employer and have\n500 or more employees, do the Acts apply to me?<\/strong><\/p>\n\n\n\n A:<\/strong> No. Private sector\nemployers are only required to comply with the Acts if they have fewer than 500\nemployees.[1]<\/a> Q4: If providing childcare-related paid sick\nleave and expanded family and medical leave at my business with fewer than 50\nemployees would jeopardize the viability of my business as a going concern, how\ndo I take advantage of the small business exemption?<\/strong><\/p>\n\n\n\n A:<\/strong> To elect this small business exemption, you should document why\nyour business with fewer than 50 employees meets the criteria set forth by the\nDepartment, which will be addressed in more detail in forthcoming regulations.<\/p>\n\n\n\n You should not send any materials to the Department of Labor\nwhen seeking a small business exemption for paid sick leave and expanded family\nand medical leave. Q5: How do I count hours worked by a part-time\nemployee for purposes of paid sick leave or expanded family and medical leave? <\/strong><\/p>\n\n\n\n A:<\/strong> A part-time employee is entitled to leave for his or her\naverage number of work hours in a two-week period. Therefore, you calculate hours\nof leave based on the number of hours the employee is normally scheduled to\nwork. If the normal hours scheduled are unknown, or if the part-time employee\u2019s\nschedule varies, you may use a six-month average to calculate the average daily\nhours. Such a part-time employee may take paid sick leave for this number of\nhours per day for up to a two-week period and may take expanded family and\nmedical leave for the same number of hours per day up to ten weeks after that.<\/p>\n\n\n\n If this calculation cannot be made because the employee has not\nbeen employed for at least six months, use the number of hours that you and\nyour employee agreed that the employee would work upon hiring. And if there is\nno such agreement, you may calculate the appropriate number of hours of leave based\non the average hours per day the employee was scheduled to work over the entire\nterm of his or her employment. Q6: When calculating pay due to employees,\nmust overtime hours be included?<\/strong><\/p>\n\n\n\n A:<\/strong> Yes. The Emergency Family and Medical Leave Expansion Act\nrequires you to pay an employee for hours the employee would have been normally\nscheduled to work even if that is more than 40 hours in a week. <\/p>\n\n\n\n However, the Emergency Paid Sick Leave Act requires that paid\nsick leave be paid only up to 80 hours over a two-week period. For example, an\nemployee who is scheduled to work 50 hours a week may take 50 hours of paid\nsick leave in the first week and 30 hours of paid sick leave in the second\nweek. In any event, the total number of hours paid under the Emergency Paid\nSick Leave Act is capped at 80.<\/p>\n\n\n\n If the employee\u2019s schedule varies from week to week, please see\nthe answer to Question 5, because the calculation of hours for a full-time\nemployee with a varying schedule is the same as that for a part-time employee.<\/p>\n\n\n\n Please keep in mind the daily and aggregate caps placed on any\npay for paid sick leave and expanded family and medical leave as described in\nthe answer to Question 7.<\/p>\n\n\n\n Please note that pay does not need to include a premium for\novertime hours under either the Emergency Paid Sick Leave Act or the Emergency\nFamily and Medical Leave Expansion Act.<\/p>\n\n\n\n Click here<\/a> for more detailed information from the DOL.<\/p>\n\n\n\n Q7: As an employee, how much will I be paid\nwhile taking paid sick leave or expanded family and medical leave under the\nFFCRA?<\/strong><\/p>\n\n\n\n A:<\/strong> It depends on your normal schedule as well as why you are\ntaking leave.<\/p>\n\n\n\n If you are taking paid sick leave because you are unable to work\nor telework due to a need for leave because you (1) are subject to a Federal,\nState, or local quarantine or isolation order related to COVID-19; (2) have\nbeen advised by a health care provider to self-quarantine due to concerns\nrelated to COVID-19; or (3) are experiencing symptoms of COVID-19 and are\nseeking medical diagnosis, you will receive for each applicable hour the\ngreater of:<\/p>\n\n\n\n In these circumstances, you are entitled to a maximum of $511\nper day, or $5,110 total over the entire paid sick leave period.<\/p>\n\n\n\n If you are taking paid sick leave because you are: (1) caring\nfor an individual who is subject to a Federal, State, or local quarantine or\nisolation order related to COVID-19 or an individual who has been advised by a\nhealth care provider to self-quarantine due to concerns related to COVID-19;\n(2) caring for your child whose school or place of care is closed, or child\ncare provider is unavailable, due to COVID-19 related reasons; or (3)\nexperiencing any other substantially-similar condition that may arise, as\nspecified by the Secretary of Health and Human Services, you are entitled to\ncompensation at 2\/3 of the greater of the amounts above.<\/p>\n\n\n\n Under these circumstances, you are subject to a maximum of $200\nper day, or $2,000 over the entire two-week period.<\/p>\n\n\n\n If you are taking expanded family and medical leave, you may\ntake paid sick leave for the first ten days of that leave period, or you may\nsubstitute any accrued vacation leave, personal leave, or medical or sick leave\nyou have under your employer\u2019s policy. For the following ten weeks, you will be\npaid for your leave at an amount no less than 2\/3 of your regular rate of pay<\/a> for the hours you would be normally\nscheduled to work. The regular rate of pay<\/a> used to calculate this amount must be at\nor above the federal minimum wage, or the applicable state or local minimum\nwage. However, you will not receive more than $200 per day or $12,000 for the\ntwelve weeks that include both paid sick leave and expanded family and medical\nleave when you are on leave to care for your child whose school or place of\ncare is closed, or child care provider is unavailable, due to COVID-19 related\nreasons.<\/p>\n\n\n\n To calculate the number of hours for which you are entitled to\npaid leave, please see the answers to Questions 5-6 that are provided in this\nguidance.<\/p>\n\n\n\n Click here<\/a> for more detailed information from the DOL.<\/p>\n\n\n\n Q8: What is my regular rate of pay for\npurposes of the FFCRA?<\/strong><\/p>\n\n\n\n A:<\/strong> For purposes of the FFCRA, the regular rate of pay used to\ncalculate your paid leave is the average of your regular rate<\/a> over a period of up to six months prior\nto the date on which you take leave.[2]<\/a> If\nyou have not worked for your current employer for six months, the regular rate\nused to calculate your paid leave is the average of your regular rate of pay\nfor each week you have worked for your current employer.<\/p>\n\n\n\n If you are paid with commissions, tips, or piece rates, these\nwages will be incorporated into the above calculation.<\/p>\n\n\n\n You can also compute this amount for each employee by adding all\ncompensation that is part of the regular rate over the above period and divide\nthat sum by all hours actually worked in the same period.<\/p>\n\n\n\n Click here<\/a> for more detailed information from the DOL.<\/p>\n\n\n\n Q9: May I take 80 hours of paid sick leave for\nmy self-quarantine and then another amount of paid sick leave for another\nreason provided under the Emergency Paid Sick Leave Act?<\/strong><\/p>\n\n\n\n A:<\/strong> No. You may take up to\ntwo weeks\u2014or ten days\u2014(80 hours for a full-time employee, or for a part-time\nemployee, the number of hours equal to the average number of hours that the\nemployee works over a typical two-week period) of paid sick leave for any\ncombination of qualifying reasons. However, the total number of hours for which\nyou receive paid sick leave is capped at 80 hours under the Emergency Paid Sick\nLeave Act. <\/p>\n\n\n\n Click here<\/a> for more detailed information from the DOL.<\/p>\n\n\n\n Q10: If I am home with my child because his or\nher school or place of care is closed, or child care provider is unavailable,\ndo I get paid sick leave, expanded family and medical leave, or both\u2014how do\nthey interact?<\/strong><\/p>\n\n\n\n A:<\/strong> You may be eligible for both types of leave, but only for a\ntotal of twelve weeks of paid leave. You may take both paid sick leave and\nexpanded family and medical leave to care for your child whose school or place\nof care is closed, or childcare provider is unavailable, due to COVID-19\nrelated reasons. The Emergency Paid Sick Leave Act provides for an initial two\nweeks of paid leave. This period thus covers the first ten workdays of expanded\nfamily and medical leave, which are otherwise unpaid under the Emergency and\nFamily Medical Leave Expansion Act unless the you elect to use existing\nvacation, personal, or medical or sick leave under your employer\u2019s policy.\nAfter the first ten workdays have elapsed, you will receive 2\/3 of your regular rate of pay<\/a> for the hours you would have been\nscheduled to work in the subsequent ten weeks under the Emergency and Family\nMedical Leave Expansion Act.<\/p>\n\n\n\n Please note that you can only receive the additional ten weeks\nof expanded family and medical leave under the Emergency Family and Medical\nLeave Expansion Act for leave to care for your child whose school or place of\ncare is closed, or child care provider is unavailable, due to COVID-19 related\nreasons.<\/p>\n\n\n\n Click here<\/a> for more detailed information from the DOL.<\/p>\n\n\n\n Q11: Can my employer deny me paid sick leave\nif my employer gave me paid leave for a reason identified in the Emergency Paid\nSick Leave Act prior to the Act going into effect?<\/strong><\/p>\n\n\n\n A:<\/strong> No. The Emergency Paid\nSick Leave Act imposes a new leave requirement on employers that is effective\nbeginning on April 1, 2020.<\/p>\n\n\n\n Click here<\/a> for more detailed information from the DOL.<\/p>\n\n\n\n Q12: Is all leave under the FMLA now paid\nleave?<\/strong><\/p>\n\n\n\n A:<\/strong> No. The only type of family and medical leave that is paid\nleave is expanded family and medical leave under the Emergency Family and\nMedical Leave Expansion Act when such leave exceeds ten days. This includes\nonly leave taken because the employee must care for a child whose school or\nplace of care is closed, or childcare provider is unavailable, due to COVID-19\nrelated reasons.<\/p>\n\n\n\n Click here<\/a> for more detailed information from the DOL.<\/p>\n\n\n\n Q13: Are the paid sick leave and expanded\nfamily and medical leave requirements retroactive?<\/strong><\/p>\n\n\n\n A:<\/strong> No. Q14: How do I know whether I have \u201cbeen\nemployed for at least 30 calendar days by the employer\u201d for purposes of\nexpanded family and medical leave?<\/strong><\/p>\n\n\n\n A:<\/strong> You are considered to\nhave been employed by your employer for at least 30 calendar days if your\nemployer had you on its payroll for the 30 calendar days immediately prior to\nthe day your leave would begin. For example, if you want to take leave on April\n1, 2020, you would need to have been on your employer\u2019s payroll as of March 2,\n2020.<\/p>\n\n\n\n If you have been\nworking for a company as a temporary employee, and the company subsequently\nhires you on a full-time basis, you may count any days you previously worked as\na temporary employee toward this 30-day eligibility period. <\/p>\n\n\n\n Click here<\/a> for more detailed information from the DOL.<\/p>\n\n\n\n Q15: What About the Small\nEmployer Exception?<\/strong><\/p>\n\n\n\n A:<\/strong> The\nAct does not exclude smaller employers, but it does direct the DOL to issue regulations\nexempting businesses with 50 or fewer workers if making them pay leave would\n\u201cjeopardize the viability of the business as a going concern.\u201d This guidance directs businesses that may seek\nan exemption to “document why your business with fewer than 50 employees\nmeets the criteria set forth by the department, which will be addressed in more\ndetail in forthcoming regulations.” \nFuture Guidance further addressing this exemption is expected to be\npublished shortly. <\/p>\n\n\n\n Click here<\/a> for more detailed information from the DOL.<\/p>\n\n\n\n As always, please let me know<\/a> if I can help.<\/p>\n\n\n\n —————–<\/p>\n\n\n\n
Fact Sheet for Employees<\/a>;
Fact Sheet for Employers<\/a>; and
Questions and Answers<\/a>. <\/p>\n\n\n\n
\nClick here<\/a> for more detailed information from the DOL.<\/p>\n\n\n\n
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