March 25, 2020

The DOL issued a Question and Answer guidance to assist in interpreting the expanded FMLA, called the Families First Coronavirus Response Act.

Some points:

  • The DOL says the effective date is April 1, 2020.
  • Please note this is different than most people assumed, April 2.
  • The 500 employee threshold includes:
    • Both full and part-time employees, including those on leave
    • Those who are jointly employed
    • Day laborers supplied by a temporary agency
  • Independent contractors are not covered.

Small Business Exemption

A small business exemption exists for employers with fewer than 50 employees. Employers may seek the small business exemption from the DOL. It needs to show that providing the leave could jeopardize the viability of the business as a concern. Documentation will be required to meet specific criteria apparently set forth by the DOL in regulations still to be released.

To count hours worked by a part-time employee for purposes of the paid sick leave or expanded FMLA, you calculate the average hours worked in a two-week period. If the schedule varies or normal hours are not scheduled, use a six-month average to calculate the average daily hours.

For employees not employed for at least six months, use the number of hours agreed they would work upon hire. If there is no such agreement, calculate the hours of leave based on the average hours per day scheduled to work over the entire term of their employment. The amount an employee receives is calculated as follows.

Under the paid sick leave law, if the leave is because the employee cannot work or telework because they:

  1. Are subject to a Federal, State, or local quarantine or isolation order related to COVID-19
  2. Were advised by a health care provider to self-quarantine due to concerns related to COVID-19
  3. Experience symptoms of COVID-19 and seek a medical diagnosis

The employee receives for each applicable hour the greater of:

    1. Their regular rate of pay
    2. Federal minimum wage in effect under the FLSA
    3. Applicable state or local minimum wage

The maximum is $511 per day, or $5,110 total over the entire paid sick leave period.

If the leave is because the employee:

  1. Cares for an individual subject to a Federal, State, or Local quarantine or isolation order related to COVID-19.
  2. Cares for someone advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
  3. The employee’s child’s school closed or childcare provider is unavailable, due to COVID-19 related reasons.
  4. Experiences any other substantially similar condition that may arise, as specified by the Secretary of Health and Human Services, the pay is 2/3 of the greater of the amounts above.

Under these circumstances, the maximum is $200 per day or $2,000 over the entire two-week period. If the leave is the expanded FMLA, the employee may use paid sick leave for the first ten days of that leave period, otherwise unpaid. The employee may substitute any accrued vacation, personal, medical, or sick leave.

For the Remaining 10 Weeks

The employee will be paid no less than 2/3 of their regular rate of pay for the hours normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage or the applicable state or local minimum wage. However, the employee cannot receive more than $200 per day or $12,000 for the 12 weeks that include both paid sick, expanded family, and medical leave.

Paid Leave

The total amount of paid leave under the paid sick leave law is 80 hours. This includes all reasons for leave covered by the Act. It is not 80 hours for one qualifying reason. Then, another 80 hours for another qualifying reason.

If an employee is at home with a child because school or daycare is closed, the employee may be eligible for both the FMLA and sick leave. They’re only entitled to a total of 12 weeks of paid leave. The emergency paid leave law provides for the first two weeks or 80 hours of paid leave.

That covers the first 10 workdays of FMLA. It is otherwise unpaid. Unless the employee elects to use existing accrued leave. After those first 10 days or 80 hours, the employee would receive 2/3 of their regular rate of pay for hours scheduled to work for the remaining 10 weeks of leave.

The paid leave under the paid sick leave FMLA laws starts April 1. If an employer provided paid leave before that date, they still need to provide what these amendments require. To qualify for the expanded FMLA, the employee needs to have been employed for at least 30 calendar days by the employer prior to the leave.

This means the employee has to have been on the employer’s payroll as of March 2, 2020. If the employee was a temp and subsequently hired on a full-time basis, the time spent as a temporary employee counts toward the 30-day eligibility period. We continue to keep you updated on any additional guidance as it becomes available.

This information is accurate as of March 25, 2020. It is subject to change based on any new legislation.

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell
Anne-Marie Storey, Esq
Rudman Winchell

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