U.S. Department of Labor Guidance on Paid Sick Leave and Expanded Family and Medical Leave Under the Families First Coronavirus Response Act

October 25, 2020

On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed into law, requiring certain employers to provide paid sick leave and paid family leave for eligible employees affected by the Coronavirus of COVID-19. The Act provides that the Secretary of Labor will issue guidance to assist employers in implementing the provision of the Act.

On March 24, 2020, the U.S. Department of Labor’s (“DOL”) Wage and Hour Division (“WHD”) published guidance for employees and employers to take advantage of the protections and relief provided by the FFRCA. The Department of Labor’s WHD administers and enforces the new law’s paid leave requirements. The guidance is provided in a Fact Sheet for Employees, a Fact Sheet for Employers, and Question and Answer document, addressing critical questions concerning the leave provisions in the Act.

On March 25, 2020, the WHD published further guidance in the form of additional Fact Sheets and Questions and Answer documents, as well as workplace posters for employers to provide to employees. Additional information will likely be forthcoming from the WHD in the next few days. The law is to take effect on April 1, 2020, rather than April 2nd, and will apply through December 31, 2020.
As used herein, “paid sick leave” means paid leave under the Emergency Paid Sick Leave Act, and “expanded family and medical leave” means paid leave under the Emergency Family and Medical Leave Expansion Act.

FACT SHEET FOR EMPLOYEES AND EMPLOYERS

The Fact Sheet for Employees and the Fact Sheet for Employers cover the same general information. Among other things, they provide an overview of the leave requirements under the FFCRA. Covered employers are required to provide their employees with paid sick leave and expanded family and medical leave for certain qualified reasons related to COVID-19, including the following:

Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay, where the employee is unable to work because the employee is quarantined (pursuant to an order of the federal, state, local government or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to an order of the federal, state, local government or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable due to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
Up to 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay if an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19 (for employees who have been employed for at least 30 days prior to the leave).

However, employers of health care providers or emergency responders may elect to exclude such employees from this leave.

The Fact Sheets also provide the following guidance on application of the leave requirements.

Covered Employers

The FFCRA applies to certain public and private employers with fewer than 500 employees.
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or unavailability of childcare if it would jeopardize the viability of the business as a going concern. Employers with fewer than 50 employees may also seek an exemption from other provisions of the Act, and the DOL is expected to issue guidelines with that regard to those employers in April 2020.

Covered Employees

All employees of covered employers are eligible for two (2) weeks of paid sick time for specified reasons related to COVID-19.

Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.

Special rules apply for health care providers and emergency responders.

Employees should provide notice of leave as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures to continue receiving paid sick time.

Qualifying Reasons for Leave

The Fact Sheets provide that an employee qualifies for sick leave if the employee is unable to work (or telework) due to a need for leave because the employee:

is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
has been advised by a health care provider to self-quarantine related to COVID-19;
is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
is caring for an individual subject to an order described in (1) or self-quarantine in (2);
is caring for a child whose school or place of care is closed because of COVID-19;
is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The employee also qualifies for expanded family and medical leave if the employee is caring for a child whose school or place of care is closed because of COVID-19.

Duration of Leave

For reasons (1)-(4) and (6), full time employees are eligible for up to 80 hours of leave, and part-time employee are eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5), full-time employees are eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave) at 40 hours a week, and part-time employees are eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay

For reasons (1)-(3), employees taking leave shall be paid at the higher of either their regular rate or the applicable minimum wage, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For reasons (4) or (6), employees taking leave shall be paid at the higher of either 2/3 their regular rate or 2/3 the applicable minimum wage, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For reason (5), employees taking leave shall be paid at the higher of either 2/3 their regular rate or 2/3 the applicable minimum wage, up to $200 per day and $12,000 in the aggregate (over a 12-week period – two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave). Employees may choose to substitute the first two weeks with any accrued vacation leave personal leave, or medical or sick leave under their employer’s policy.

Leave under this Act does not carry over to the following year, and employees are not entitled to reimbursement for unused leave upon termination of employment.

Tax Credits

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for qualifying wages paid under the FFCRA, up to the appropriate per diem and aggregate payment caps.

Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.

Employer Notices

Covered employers must post a notice of FFCRA requirements in a conspicuous place on its premises. The DOL has now provided two model notices on Employee Rights, one for non-federal employees and a second for federal employees.

Prohibitions

Employers may not discharge, discipline, or otherwise discriminate against any employee for taking leave under the FFCRA or for filing a complaint or instituting a proceeding under FFCRA.

Penalties and Enforcement

Employers who violate the first two weeks of expanded leave provisions or prohibitions of the FFCRA will be subject to penalties and enforcement as described in the Fair Labor Standards Act (“FLSA”), 29 U.S.C. 216, 217.

Employers who violate provisions providing for an additional 10 weeks of expanded family and medical leave to care for a child whose school or place of care is closed are subject to the enforcement provisions of the Family and Medical Leave Act (“FMLA”).

The DOL will observe a temporary 30-day period of non-enforcement after the Act takes effect, or until April 17, 2020, so long as the employer acts reasonably and in good faith to comply with the Act. “Good faith” exists when:

violations are remedies and the employee is made whole as soon as practicable by the employer,
the violations are not willful, and
the employer provides a written commitment to the DOL to comply in the future

QUESTION AND ANSWER SHEETS

The DOL also provided a Question and Answer sheet, providing guidance on the following topics. The DOL will also be issuing regulations to implement the provisions in the Act.

Effective Date of the FFCRA

The paid leave provisions under the FFCRA are effective April 1, 2020, and apply to leave taken between April 1, 2020 and December 31, 2020.

Calculation of Size of Employer

In making the determination as to whether a business is under the 500-employee threshold, employers should include employees on leave, temporary employees who are jointly employed employees (regardless of whether they are maintained only on one of the employer’s payroll), and day laborers supplied by a temporary agency (if there is a continuing employment relationship).

Workers, who are independent contractors under the FLSA, rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. However, where a corporation has an ownership interest in another corporation, the two corporations are separate employers, unless they are joint employers of certain employees under the FLSA. If two entities are joint employers, all of their common employees must be counted in determining coverage under the FFCRA.

In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA. If two entities are an integrated employer under the FMLA, then employees of all entities making up the integral employer will be counted in determining coverage under the FFCRA.

Private Sector Employers

Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.

Small Businesses Exemption

Employers with fewer than 50 employees can apply for an exemption under the Act if providing child-care-related paid sick leave and expanded family and medical leave would jeopardize the viability of their business as a going concern.

To take advantage of the exemption, employers should document why their business meets the criteria, which will be addressed by the DOL in more detail in forthcoming regulations. However, employers should not send any materials to the DOL when seeking the small business exemption.

Calculation of Hours Worked by Part-Time Employees

Part-time employees are entitled to leave for the average number of hours worked in a two-week period. This calculation is based on the number of hours the employee is normally scheduled to work.

If the normal hours are unknown or varies, a six-month average may be used. The part-time employee may take paid sick leave for this number of hours per day for the two-week period, and then expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If the employee has not been employed for at least six months, the number of hours that the employee agreed to work upon hiring may be used. If no such agreement, the appropriate number of hours may be calculated based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

Overtime Hours, Overtime Pay

When calculating pay due to employees for expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act, if the employee would have normally been scheduled to work more than 40 hours in a week, overtime hours must be included, subject to the daily and aggregate cap. However, premium pay is not required for hours worked over 40 per week.

When calculating pay due to employees for paid sick leave under the Emergency Paid Sick Leave Act, the Act only requires payment for up to 80 hours over a two-week period. So if an employee is scheduled to work 50 hours per week, that employee may take 50 hours of paid sick leave in the first week, and 30 hours of paid sick leave in the second week, for a total of 80 hours in two weeks, subject to the daily and aggregate cap. Again, premium pay is not required for hours worked over 40 per week.

Calculation of Rate of Pay

The rate of pay for an employee taking paid sick leave or expanded family and medical leave under the FFCR depends on the employee’s normal schedule the reason for taking leave.

Employees who are taking paid sick leave because they are unable to work because they (1) are subject to a federal, state or local order of quarantine or isolation related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, will receive:

the greater of their regular hourly rate of pay, or the applicable minimum wage (federal, state or local)
up to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

Employees who are taking paid sick leave because they are unable to work because they are (1) caring for an individual who is subject to a federal, state or local order of quarantine or isolation related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for a child whose school or place of care is closed due to COVID-19; or (3) experiencing any other substantially-similar conditions that may arise, as specified by the Secretary of Health and Human Services, will receive:

the greater of 2/3 of their regular hourly rate of pay, or 2/3 of the applicable minimum wage (federal, state or local)
up to a maximum of $200 per day, or $2,000 total over the entire paid sick leave period.

Employees taking expanded family and medical leave:

for the first 10 days, they may take paid sick leave, or substitute any accrued vacation leave, personal leave or medical or sick leave under their employer’s policy
for the following 10 weeks, they will be paid for leave at the greater of 2/3 of their regular hourly rate of pay, or 2/3 of the applicable minimum wage (federal, state or local)
up to a maximum of $200 per day, or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when the employee is on leave to care for a child whose school or place of care is closed due to COVID-19.

Regular Rate of Pay

For purposes of FFCRA, the regular rate of pay used to calculate paid leave is the average of the employee’s regular rate (as determined by section 7(e) of the FLSA) over a period of up to six months prior to the date on which leave is taken.

If the employee has not worked for the employer for six months, the regular rate is the average of the regular rate of pay for each week worked for the employer.

If paid with omissions, tips or piece rates, they should be incorporated into the calculation of regular rate.

The regular rate can also be computed for each employee by adding all compensation that is part of the regular rate over the applicable period above and dividing it by the sum of all hours actually worked in the same period.

No Stacking of Paid Sick Leaves

Employees may not use 80 hours of paid sick leave for one qualifying reason, and then another amount for another qualifying reason under the Emergency Paid Sick Leave Act. Employees may only take up to two weeks of paid sick leave, capped at 80 hours total for full-time employees, or the number of hours worked over a two-week period for part-time employees, for any combination of qualifying reasons.

Stacking of Paid Sick Leave and Expanded Family and Medical Leave

Employees may take both paid sick leave and expanded family and medical leave to care for a child whose school or place of care is closed for COVID-19 reasons, for a total of twelve (12) weeks of paid leave.

The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave, which covers the first ten workdays of expanded family and medical leave (which is otherwise unpaid unless accrued vacation, personal, medical or sick leave under the employer’s policy is used).

Thereafter, the employee can receive another ten weeks of leave under the expanded family and medial leave at a rate of 2/3 the regular rate of pay for the hours the employee would have been scheduled to work in those ten weeks. However, the additional ten weeks of leave can only be used care for a child whose school or place of care is closed for COVID-19 reasons.

Paid Sick Leave Taken Prior to the FFCRA

If an employee was provided paid sick leave for a qualifying reason prior to the effective date of FFCRA, the employee is entitled to the full amount of paid sick leave under the Emergency Paid Sick Leave Act beginning on April 1, 2020.

All Leave Under the FMLA Leave Is Not Paid

Only family leave under the Emergency Family and Medical Leave Expansion Act is paid, after the first 10 days of leave.

Is Paid Leave Under the FFCRA Retroactive

No, the paid sick leave and expanded family and medical leave requirements under the FFCRA are not retroactive.

Calculation of 30-Day Eligibility Period for Employees

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

For an employee who has been working as a temporary employee, and is subsequently hired on a full-time basis, the days previously worked as a temporary employee may be counted towards the 30-day eligibility period.

Employer’s Obligation to Employees Under a Government-Imposed Quarantine

WHD encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.

Employers Can Require Employees to Perform Work Outside the Job Description

The FLSA does not limit the types of work employees over the age of 18 may be required to perform, even if outside the employee’s job description. Thus, workers may be assigned to work outside of their job description during a pandemic or public health emergency. Employers should however consult their collective bargaining agreements with unions.

Employers Can Send Employees Home or Require Them to Take Sick Leave

Employees can exclude employees from the workplace, but cannot do so on a discriminatory basis (i.e., age, disability, race, sex, etc.) However, an employer may exclude from the workplace an employee with a disability if the employer:

obtains objective evidence that the employee poses a direct threat (i.e., significant risk of substantial harm); and
determines that there is no available reasonable accommodation to eliminate the direct threat.

During a pandemic, employers may require a doctor’s note, a medical examination, or a timer period during which the employee has been symptom free before it allows the employee to return to work, if the employer has reasonable belief, based on objective evidence, that the employee’s present medical condition would:

impair his ability to perform essential job functions with or without reasonable accommodation, or
pose a direct threat (i.e., significant risk of substantial harm that cannot be reduced or eliminated by reasonable accommodation) to safety in the workplace

Telework

Employers may require employees to telework as an infection-control strategy. Telework may also be a reasonable accommodation.

However, employers may not single out employees to either telework or report to the workplace on a basis that is discriminatory.

Employers do not need to pay non-exempt employees their same hourly rate if they work from home, unless required to do so by union or employment contract, or if teleworking is provided as a reasonable accommodation. However, employees must be paid the minimum wage and they must be paid for all hours worked, including overtime hours at 1.5 times the hourly rate.

Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping records for injuries and illnesses occurring in a home office.

In the event an employer bars employees from working from the workplace and requires them to work from home, for those who are unable to work from home, the employer is not required to pay them. The FLSA only requires employees to be paid for time actually worked. Salaried exempt employees only must receive their full salary in any week in which they perform any work.

When not all employees can work from home, WHD encourages employers to consider additional options to promote social distancing, such as staggered work shifts.

Additional FLSA Questions

Volunteering. Business with a shortage of workers and that are looking for “volunteers to help out should be aware of FLSA requirements. In general, covered, nonexempt workers for private, for-profit employers must be paid at least the minimum wage and cannot volunteer their services. Employers should check with DOL for rules governing volunteering in the public and private, non-profit sector.

Individuals who volunteer their services to a public agency in an emergency capacity are not considered employees due compensation under the FLSA if they:

perform such services for civic, charitable or humanitarian reasons without expectation of compensation (although expenses, benefits and nominal fees may be paid);
offer their services freely and without coercion; and
are not otherwise employed by the same pubic agency to perform the same services for which they are volunteering.

Similarly, individuals who volunteer their services to private not-for-profit organizations in an emergency capacity for civic, charitable or humanitarian reasons without expectation of compensation are not considered employees due compensation under the FLSA. However, employees of such organizations may not volunteer to perform on an uncompensated basis the same services they are employed to perform.

Final Paycheck. Employers must provide workers who have been laid off with their final paycheck by the regular payday for the pay period worked.

Partial Work. If an employee worked a partial week but then the employer’s business closed, under the FLSA that employee only needs to be paid for hours actually worked - not hours the employee would otherwise have worked.

Forced Vacations. The FLSA does not require employers to provide vacation time. Where an employer offers a bona fide benefits plan or vacation time to employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on a specific day.

Exempt Employees. Generally exempt employees must receive their full salary in any week in which they perform any work.

FMLA Leave

Employees who are out of work due to a serious health condition, or to care for a family member with a serious health condition, may be entitled to unpaid leave under the FMLA if they:

have worked for their employer for at least 12 months;
have at least 1,250 hours of service over the previous 12 months; and
work at a location where at least 50 employees are employed within 75 miles

Eligible employees are entitled to up to 12 weeks of unpaid, job-protected leave in a 12-month period.

Employee’s Refusal to Work at the Workplace

Leave taken by an employee for the purpose of avoiding exposure to the Coronavirus would not be protected under the FMLA. Employers should consider flexible leave policies for their employees in these circumstances.

Can Employers Change Paid Sick Leave Policy

Employers may change their sick leave policy if a number of employees are out and they cannot afford to pay, provided it does so in a manner that does not discriminate, and in compliance with any collective bargaining agreement. Otherwise, while employees may have a contractual right to any accrued sick leave, they do not have a right to future leave.

Laying Off of Employees

If an employer temporarily closes its place of business because of COVID-19 related reasons, it may choose to lay off some but not all employees, so long as it does not do so on a discriminatory basis.

Employers should consider whether notice requirements under the Worker Adjustment and Retraining Notification (WARN) Act would be triggered.

Posting of Notices of FFCRA Requirements

Each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises. If the employer has a main office and several other worksites, the notice only needs to be posted in the main location. An employer with employees who are teleworking may satisfy the notice requirement by emailing or direct mailing the notice to current employees, or posting it on the employee information internal or external website.

Notice only need be provided to current employees, including new hires. It does not have to be shared with laid-off workers or prospective employees.

The notice does not need to be posted in multiple languages, although the DOL is working to translate it into other languages.

All employers with fewer than 500 employees must post the notice.

IMPACT ON NEW YORK

Qualify Reason for Leave

The FFCRA is broader in terms of qualifying reasons for taking leave, as it includes not only employees who are ordered quarantined or isolated by a governmental entity, but also on advice by a health care provider.

The New York emergency paid family and sick leave law only applies to those subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity authorized to issue such order due to COVID-19. Thus, more employees with qualify for leave under the FFCRA.

Covered Employers

The FFCRA excludes from coverage employers with greater than 500 employees. Employers with fewer than 50 employees can also seek an exemption if the requirements would jeopardize the viability of their business as a going concern.

The New York law applies to all employers regardless of size. It only impacts the amount of leave that is required to be provided. Employers with 100 or more employees are required to provide at least 14 days of paid sick leave, while employers with 11 to 99 employees and employers with 10 or fewer employees (with net income more than $1 million in the previous tax year) must provide at least 5 days of paid sick leave. Employers with 10 or fewer employees (with net income less than $1 million in the previous tax year) are only required to provide unpaid sick leave, along with paid family leave and disability benefits.

Covered Employees

The FFCRA excludes from coverage for expanded family and medical leave employees who have not been employed by the employer for30 days prior to the need to take leave. The New York law applies immediately, regardless of length of employment.

Under the FFCRA, employers may exclude from coverage health care providers or emergency responders.

These materials were prepared by Putney, Twombly, Hall & Hirson LLP prior to their combination with Bond, Schoeneck & King for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create an attorney-client relationship or an attorney-client privileged communication. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

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