As employees begin to use coronavirus-related paid sick leave and family and medical leave, here is a checklist of five factors compliance teams should take into consideration.
It has been a little more than 20 days since the Families First Coronavirus Response Act (FFCRA) went into effect. To help employers remain complaint with the federal emergency paid leave law, we’ve created a checklist with five items to consider as you navigate the complexities of the sweeping legislation.
As a refresher, the FFCRA was signed into law March 18 and went into effect April 2. It expires Dec. 31, 2020.
The legislation, which includes both paid sick leave and expanded paid family and medical leave, applies only to companies with fewer than 500 employees. For a full rundown what the legislation means for employers, check out our previous blog posts:
Because the legislation only applies to employers with fewer than 500 workers, the first thing to do is correctly assess whether your employees can take advantage of the FFCRA.
Firstly, both full- and part-time employees must be included in the calculation. That also includes:
Workers on leave
Jointly employed temporary workers
Day laborers from temp agencies
However, it is notable that independent contractors — as defined by the Fair Labor Standards Act —would not be included in the fewer-than-500 calculation.
Determine Allowed Use
For both paid sick leave and family and medical leave, any reasons for use must be tied to the coronavirus. That means being sick, waiting to get tested, being under quarantine or caring for a child because of a coronavirus-related reason (depending on which of the two an employee is using).
But the U.S. Department of Labor recently issued a temporary rule about the FFCRA. In it, the DOL said paid sick leave cannot be used if a business is forced to close because of COVID-19 directives. The same applies when it comes to the paid family and medical leave portion of the bill.
Lastly, paid sick leave may be used if an employee is experiencing COVID-19 symptoms but has yet to test positive, though the individual must be actively attempting to secure medical evaluation.
Working from Home?
What if an employee can work from home? Would he or she still qualify for paid sick leave or family and medical leave?
The short answer is no. And if an employee can work remotely while caring for a child, paid family and medical leave would not be available.
However, if a worker still cannot telecommute because of COVID-19 reasons, he or she would be eligible so long as they fall under the qualifying reasons:
Subject to a government-issued quarantine or isolation order
Was told by a health care provider to self-quarantine
Experiencing COVID-19 symptoms and is seeking a medical diagnosis
Caring for an individual subject to an official order
Caring for a child whose school or place of care is closed
Experiencing another similar condition
Calculate ‘Regular Rate of Pay’
One tricky portion of the FFCRA is calculating the regular rate of pay.
According to the legislation, eligible employees could take up to 12 weeks of leave. The first 10 days would be unpaid, but employees could apply the 10 days of paid federal sick days to the unpaid family leave days. The remaining leave would be paid at two-thirds of the employee’s regular rate of pay.
An employee’s regular rate of pay used to calculate paid leave is the average of the regular rate over a period of up to six months prior to the date when they take leave. 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 their current employer.
Another part of the FFCRA temporary rule the DOL issued relates to documentation requirements.
Employees must provide documentation on their end — the name of the governmental body that issued the quarantine or the medical official who advised the employee, the school that was closed, etc.
But it will be up to employers also keep copies of the documentation for four years for both paid sick leave and family and medical leave.
Employers and federal officials are still wading through the impacts of the FFCRA. Further guidance could be on the horizon as unforeseen issues arise.
In the meantime, find more information on the legislation from Employment Law News:
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