DOL Issues Additional Guidance on Paid Sick and Family Leave Requirements

Counting Employees

The FFCRA is applicable to private employers that employ fewer than 500 employees. The DOL provided the following clarifications on when and how to count employees for purposes of complying with the FFCRA:

• • An employer’s employees are to be counted at the time the employee’s leave is to be taken.
  • Both part- and full-time employees employed anywhere in the United States (or its territories) are to be counted.
  • Employees on leave are to be counted.
  • Temporary employees who are jointly employed by the employer and another employer are to be counted.
  • Day laborers supplied by a temp agency are to be counted.

The DOL Q&A specifically provide that workers considered independent contractors under the Fair Labor Standards Act (FLSA) are not employees for FFCRA purposes.

The Effect of Furloughs and Site Closings

The DOL has also answered numerous questions regarding the applicability of the FFCRA with respect to furloughs and site closures, including that:

• • For worksite closures occurring before April 1, 2020, an employee is not entitled to leave under the FFCRA.
  • For worksite closures that occur after April 1, 2020, but before an employee goes out on leave, the employee is not entitled to leave under the FFCRA.
  • For worksite closures that occur while an employee is out on Paid Sick Leave or Expanded Family and Medical Leave, the employer must pay the employee for FFCRA leave taken before the employer closed. After closure of the worksite, entitlement to FFCRA leave ceases.
  • Employees that are furloughed on or after April 1, 2020 are not entitled to leave under the FFCRA.

Calculating an Employee’s Rate of Pay Under FFCRA For Paid Sick Leave and Expanded Family and Medical Leave

An employee that takes paid sick leave because he or she is unable to work or telework because he or she (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to COVID-19 concerns; or (3) is experiencing COVID-19 symptoms and is seeking medical diagnosis is entitled to the greater of:

• • The employee’s regular rate of pay.
  • The Federal minimum wage.
  • The applicable State or local minimum wage.

For this two-week period of Paid Sick Leave, employees are entitled to a maximum of $511/day with a cap of $5,110 over the entire paid sick leave period.

If an employee takes paid sick leave because he or she is (1) caring for an individual that is subject to a Federal, State, or local quarantine or has been advised to self-quarantine by a healthcare provider due to COVID-19 concerns; (2) caring for a child whose school or place of care has closed, or childcare providers is unavailable, due to COVID-19 related reasons; or (3) is experiencing any other substantially-similar condition that may arise an employee is entitled to compensation at a rate of 2/3 the maximum of the greater of his or her regular rate of pay, the federal minimum wage, or the applicable state or local minimum wage. The cap on payments for this type of leave is $200/day with a maximum of $2,000 over the two-week period.

An employee that is taking expanded family and medical leave may take paid sick leave for the first ten days of that leave period (or may substitute any accrued PTO under an employer’s policy). For the following ten weeks, the employee is paid 2/3 his or her regular wages with a cap of $200/day and no more than $12,000 for the twelve weeks that include paid sick leave.

An Employee/Employer Can Mutually Choose to Supplement Paid Sick Leave and Expanded Family Medical Leave with Existing PTO

An employee may choose, with the employer’s permission, to supplement his or her Paid Sick Leave or Expanded Family Medical Leave with an employer’s existing PTO, up to that employee’s regular wages. Highly compensated employees may choose this option to obtain full wage replacement. However, employers that permit this practice will not receive a tax credit for leave over the FFCRA cap.

Calculating Payments for Part-Time Employees

The DOL Q&As provide that a part-time employee is entitled to leave in the amount of his or her average number of work hours in a two-week period. Where the number of hours that an employee is unknown or varies, the employer may use a six-month average of the employee’s hours to calculate the average daily hours per week. A part-time employee is then entitled to two weeks of paid sick leave based on this average and may take expanded family and medical leave for the same number of hours per day for ten additional weeks after paid sick leave is exhausted.

Intermittent Leave While Teleworking

An employee may take intermittent leave if an employer permits it and the employee is unable to telework a normal schedule of hours due to one of the qualifying reasons addressed above. Leave may be taken in any increment. For instance, the DOL posits an example where an employer needs a 1 and ½ hour leave in the middle of a workday, which would be compensated if both the employee and employer agree. The DOL expressly encourages employers and employees to collaborate to “achieve flexibility and meet mutual needs” presented by the COVID-19 pandemic.

Documentation Required by Employees

The DOL Q&As provide that an employee must provide documentation to support the reason why paid leave is required. For example, if an employee requires leave because of a school closure, the employer may require the employee to provide a notice that the school was closed.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Co-authors Jonathan Krause, partner and co-chair of the Coronavirus Task Force, and Gregory Sellers, associate, are both members of the Litigation Department at Klehr Harrison.