The Department of Labor (“DOL”) has issued additional FAQs that provide further guidance for employers and employees on the administration of the Emergency Paid Sick Leave (“EPSL”) Act and the Emergency Family and Medical Leave Act (“EFMLA”) under the Families First Coronavirus Response Act (“FFCRA”).
The new FAQs explain that generally, under the FFCRA, an employer is required to provide qualifying employees with paid sick leave equal to the number of hours the employee is scheduled to work, on average, over a two-week period, up to a maximum of 80 hours. The FAQs say that when an employer is computing the number of hours of paid sick leave for an employee who has irregular hours, it must estimate the number of hours. The estimate must be based on the average number of hours the employee was scheduled to work per calendar day over the six-month period ending on the first day of paid sick leave. This average must include all scheduled hours, including both hours actually worked and hours for which the employee took leave.
For expanded family and medical leave generally, under the FFCRA, employers are required to pay qualifying employees for each day of expanded family and medical leave taken based on the number of hours the employee was normally scheduled to work that day. If an employee works an irregular schedule and the employee has been employed for at least six months, the employer must determine the employee’s average workday hours, including any leave hours. The average must be based on the number of hours the employee was scheduled to work per workday (not calendar day) divided by the number of workdays over the six-month period ending on the first day of the employee’s paid expanded family and medical leave. Again, this average must include all scheduled hours, including both hours actually worked and hours for which the employee took leave.
The Q&As also explain that paid sick leave under the EPSL is in addition to any form of paid or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement. An employer may not require other employer-provided paid leave to run concurrently with paid sick leave under the EPSL.
In contrast, an employer may require that any paid leave available to an employee under the employer’s policies to allow an employee to care for his or her child or children because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19 related reason to run concurrently with paid expanded family and medical leave under the EFMLA. In this situation, the employer must pay the employee’s full pay during the leave until the employee has exhausted all available paid leave under the employer’s plan, including vacation and/or personal leave. (However, the employer may only obtain tax credits for wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate limits of $200 per day or $10,000 in total.) If the employee exhausts available paid leave under the employer’s plan, but has more paid expanded and medical family leave available, the employee will receive any remaining paid expanded and medical family in the amounts and subject to the daily and aggregate limits in the EFMLA. Additionally, provided both the employer and employee agree, and subject to federal and state law, paid leave provided by an employer may supplement the 2/3 pay under the EFMLA so that the employee may receive the full amount of the employee’s normal compensation.
Next, an employee may elect, but may not be required, to take paid sick leave under the EPSL or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both. If, however, an employee has used some or all paid sick leave under the EPSL, any remaining portion of that employee’s first two weeks of expanded family and medical leave may be unpaid. During this period of unpaid leave, the employee may choose to use paid leave under the employer’s policies that would be available to the employee in order to care for the employee’s child or children because their school or place of care is closed or the child care provider is unavailable due to a COVID-19 related reason concurrently with the unpaid leave.
In addition, the FAQs explain that, for purposes of the FFCRA, a federal, state, or local “quarantine or isolation order” includes shelter-in-place, or stay-at-home, orders issued by the appropriate government authority. However, the order must be the reason why the employee is unable to perform work (or telework). For example, an employee may not take paid leave due to such an order if the employer does not have work for the employee.
The FAQs also discuss how to determine an employee’s regular pay rate and what an employee can do if the employer refuses to comply with the FFCRA. The FAQs can be found at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
Please do not hesitate to contact us if you have any questions regarding this Health and Welfare Law Alert.