The U.S. Department of Labor (DOL) has beefed up its frequently asked questions on paid leave under the Families First Coronavirus Response Act (FFCRA). The DOL added questions #80-88. As we previously reported, the FFCRA applies to employers with fewer than 500 employees. Several of the new FAQs address how to calculate the amount of emergency paid sick leave (EPSL) and the amount of emergency/expanded Family and Medical Leave Act (EFMLA) leave for employees with irregular work hours. The calculations are different for each type of leave.
The FAQs also provide more details on how to calculate the average regular rate of pay for EPSL or EFMLA leave. They discuss how to do so for employees paid on commission or on a piece rate. In addition, any rounding practices must be applied consistently to all employees. When selecting the six-month period to calculate an employee’s average regular rate, you should use the six-month period immediately before the employee’s first use of EPSL or EFMLA. (In other words, you only have to do the calculation once, even if the employee takes leaves in separate blocks of time.)
For employees who have company-provided paid leave available, the DOL explains who gets to choose what leave the employees use. EPSL (up to 80 hours) is in addition to any paid leave available under company policies. During the portion of EFMLA leave that is paid, however (i.e., the last 10 weeks), you may require employees to first use accrued paid leave (such as vacation or personal leave). Employees would therefore receive full pay while they use their accrued paid leave, but you would only obtain tax credits for 2/3 of the employee’s wages (capped at $200 per day or $10,000 total). Once the employee exhausts company-provided paid leave, the employee is entitled to receive pay for the remainder of the EFMLA leave based on the 2/3 rate (subject to the caps). As an alternative, you and the employee may agree to supplement the 2/3 pay under EFMLA with company-paid leave so the employee receives full pay.
An employee may choose (but you can’t require them) to use paid sick leave under EPSL or under company policy for the first two weeks of unpaid EFMLA. They may also choose to use paid leave under other company policies that would be available for the closure of the employee’s child’s school or place of care, if that’s the reason they need leave.
Stay-at-home and shelter-in place orders are the same as quarantine or isolation orders for purposes of EPSL. But in order to qualify for EPSL due to such an order, the order must be the cause of the employee being unable to work (whether performing onsite or remotely). The FAQs give an example of an employee being prohibited from leaving a “containment zone” while the employer remains open outside the containment zone and has work available. Another example is when an employee returns from a cruise ship and a government official orders the employee to self-quarantine for 14 days.
The FAQs end by clarifying that if an employee files a complaint for unpaid wages under the FFCRA, the DOL will calculate back pay by using the employee’s regular rate if it’s greater than the federal minimum wage.
Tips: If you need help evaluating an employee’s eligibility for leave under the FFCRA, contact your Vigilant Law Group employment attorney. To communicate leave rights under the FFCRA, tailor our Model Policy, Families First Coronavirus Response Act Policy and display the FFCRA poster.