Coronavirus: DOL Issues Guidance on Emergency Paid Leave Act

The U.S. Department of Labor (DOL) has issued guidance on compliance assistance to employers and employees regarding the rights and responsibilities under the Families First Coronavirus Response Act (FFCRA).

The guidance contains helpful information, some of which we’ve summarized below. For further details on the legislation itself, check out our previous blog post. For further information, you can find the DOL’s guidance online.

Note: The DOL has issued additional guidance on the FFCRA.

Clarification of Effective Day

First, the DOL clarified that the FFCRA’s paid leave provisions are effective April 1 (not April 2). The leave provisions are effective April 1 and apply to leave taken between April 1 and Dec. 31, the final date of effective date of the emergency legislation.

How to Calculate the 500-Employee Threshold

The law applies to employers with fewer than 500 employees. To make this determination, employers should include full-time and part-time employees within the U.S.

In the calculation, employers should also include:

• Employees on leave
• Temporary employees who are jointly employed by you and another employer (regardless of whether the jointly employed workers are maintained on only your or another employer’s payroll)
• Day laborers supplied by temporary agency (regardless of whether you are the temporary agency or client firm if there is a continuing employment relationship)

Independent contractors under the Fair Labor Standards Act are not counted as employees for determination of this threshold.

How to Calculate Paid Sick Leave or Paid Family and Medical Leave for Part-Time Employees

Part-time employees are eligible for paid leave based on an average number of work hours in a two-week period. You should calculate hours of leave based on the number of hours the employee is normally scheduled to work.

However, if the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. The part-time employee may take paid sick leave for this number of hours per day for up to a two-week period and may take expanded family and medical leave (PFML) for the same number of hours per day up to 10 weeks after that.

What’s an Employee’s Regular Rate of Pay Under the Bill?

An employee’s regular rate of pay used to calculate paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.

Labor Law Posters for Remote Employees

If the employee has not worked for the employer for six months, the regular rate used to calculate paid leave is the average of the employee’s regular rate of pay for each week worked for the current employer.

Can Workers Use 80 Hours of Sick Leave for Self-Quarantine and Use Another Amount of Paid Sick Leave for a Different Reason?

No. Employees may only take up to two weeks (or 10 days) of paid sick leave for any combination of qualifying reasons.

The total number of hours for which an employee will receive sick pay under the bill is capped at 80 hours.

How Does Paid Sick Leave and PFML Interact Under FFCRA?

Paid sick leave and paid family leave under FFCRA will run concurrently if the reason for leave qualifies under both.

So, for example, if an employee is home with his/her child due to the child’s school being closed for COVID-19 reasons, the employee would be eligible for both paid sick leave and paid family leave. The first 10 workdays under paid family and medical leave are unpaid, so this period would be covered by the 80 hours of paid sick leave to care for the child. The employee would then be eligible for two-thirds of his or her regular rate of pay for up to an additional 10 weeks of paid family and medical leave to care for the child.

Related: Coronavirus – What Employers Should Know

Can an Employer Deny Paid Sick Leave Under the Bill If the Employee Received Leave for an Eligible Reason Before April 1?

No, the benefits under FFCRA impose new paid leave requirements on employers effective April 1.

How to Determine If a Worker Has Been Employed for at Least 30 Calendar Days

Under the paid family and medical leave portion of the bill, employees who have been employed for at least 30 days are eligible for paid leave.

An employee is considered to have been employed by their employer for at least 30 calendar days if the employer had the worker on its payroll for the 30 calendar days immediately prior to the day the employee’s leave would begin.

For example, if the employee needs to take leave beginning on April 1, the employee would need to have been on the employer’s payroll as of March 2.

Conclusion

The challenges of the coronavirus will be felt in the months to come.

With the legislation going into effect soon, employers should take care in how they apply paid sick leave and paid family and medical leave under the FFCRA. The legislation only covers issues related to COVID-19.

Remember that not all employees are covered by the legislation — businesses with 500 or more workers are exempt. Some states, however, including Colorado and New York, have imposed their own coronavirus-related paid sick leave laws. Other jurisdictions have made updates to paid leave legislation to cover COVID-19, as well.

Employers should work to understand how the FFCRA and related laws apply to them as they navigate the new legislation.

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