Founder and Managing Partner
We have been analyzing the effects and interactions of various new laws, including the FFCRA, and have been working to obtain further guidance from various agencies including the DLSE as to these issues. Additionally, the Department of Labor (DOL) issued new guidance on March 24, providing further clarification on interpreting the FFCRA, here are some of the highlights.
More guidance is expected on a rolling basis. Here is a link to a model Notice required to be posted at workplaces, or provided via email, mail, or online posting to current employees. We are closely monitoring the developments in the following areas, so stay tuned for updates to our FAQ, which will be continually updated with new information and please contact us to discuss your specific circumstance.
New DOL guidance clarified the following:
Counting employees for the 500 employee thresholds under the EPSLA and EFMLA
Employees included in this determination are full and part-time employees on payroll at the time the leave is to be taken, including those on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.
Two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. The DOL Guidance omits any reference to the integrated test under EPSLA, which appears to indicate that this test will not be applied to that law. However, we are awaiting confirmation on this.
Date of commencement of leave and tax credits for leave prior to April 1
New DOL guidance specifies this law only applies to leave beginning April 1 (not April 2 as previously thought). Further, employers cannot deny this leave because they provided paid leave prior to April 1. The law also does not apply retroactively so no tax credits are expected for leave given before April 1.
Exemption for small employers (less than 50 employees) is limited to the childcare reason under the EPSLA & also applies to the EFMLA; further guidance on showing the requisite hardship for exemption will be forthcoming
Businesses with less than 50 employees must show that complying with the law would jeopardize the viability of their business as a going concern. Guidance is forthcoming as to the specifics on this standard. Please note that this viability exemption applies to the EFMLA and only to leave taken for childcare under the EPSLA.
Calculating payout under EPSLA and EFMLA
Generally, employees are to be paid based on their regular rate for the hours that the employee would have normally been scheduled to work, even if that is more than 40 hours per week (but not to exceed 80 total hours under the EPSLA).
Hours normally scheduled to work:
- If the employees’ schedule varies, a 6-month average can be used to calculate the average daily hours. If the employee was employed for under 6 months, the employer should use the number of hours that were agreed upon with the employee to work, and in the absence of such an agreement, the employer can use the average number of hours per day the employee was scheduled to work over the entire term of their employment.
- Part-time employees are entitled to this EPSL only for total of hours that they would have worked per day for up to a two week period, and for the same number of hours per day up to 10 weeks thereafter under EFMLA.
- If an employee is normally scheduled to work more than 40 hours per week, then they are paid that number of hours, but still no more than a total of 80 hours. So, for example, an employee who is normally scheduled to work 50 hours in a week may use 50 hours of EPSL in the first week, and then up to 30 hours in the following week, for a total of 80 hours maximum.
Calculating the regular rate:
- EPSL for an employee who is unable to work or telework due to a need for leave because they: 1) are subject to a Federal, State, or local quarantine or isolation order 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, the rate of pay is the greatest of: This pay is capped at a maximum of $511 per day, or $5,110 total over the entire two-week paid sick leave period.
- The regular rate of pay per the Fair Labor Standards Act, which is calculated by dividing the total pay in any workweek by the total number of hours worked for that workweek;
- The applicable federal minimum wage; or
- The applicable State or local minimum wage.
- EPSL for an employee who is: 1) caring for an individual who is subject to a Federal, State or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or 2) caring for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, or 3) experiencing any other substantially-similar condition that may arise as specified by the Secretary of Health and Human services, the rate of pay equals 2/3 of the applicable rate set forth in 1-3 above.
This pay is capped at a maximum of $200 per day, or $2,000 over the entire two-week period.
- EFMLA pay (after a 10-day waiting period during which the employee may use some or all of their allotted EPSL, or may instead use PTO) is calculated at 2/3 of the applicable rate set forth in 1-3 above.
Interaction of EFMLA and EPSLA (as to the common qualifying reason of caring for a child whose care provider/school is closed or unavailable due to Covid-19) and related limitations on use
Employees can use both types of leave to care for a child, but only for a total of twelve weeks of paid leave. The EPSLA provides for an initial two weeks of paid leave. This period covers the first ten workdays of EFMLA, which are otherwise unpaid unless the employee elects to use existing vacation, personal, or medical or sick leave under the employer’s policy. After the first ten workdays, EFMLA pays the same 2/3 of regular rate of pay for the hours employee would have been scheduled to work in the subsequent ten weeks.
An employee could also use 2 weeks of EPSLA for another reason like being subject to an isolation order themselves, and then use 12 weeks EFMLA (10 weeks paid) to take care of their child at home due to school closures. The leaves would total a maximum of 14 weeks but the first 10 days of EFMLA would be unpaid or would need to be compensated by vacation, PTO, or non-EPSL sick pay.