Private employers with 500 or more employees are excluded from requirements of the Act. Determining coverage under this threshold requires employer to consider all full-time and part-time employees employed within the United States at the time the leave is taken, including employees on leave, temporary employees jointly employed with another employer, and day laborers supplied by a temporary agency. There’s also a “joint employer” test so if your organization is “on the bubble” in terms of coverage, you should consult with legal counsel to make an assessment.
- Employees are eligible for leave under the expanded Family and Medical Leave Act if they were on the employer’s payroll 30 calendar days before the leave would begin.
- Time spent as a temporary employee, such as through a temporary help agency, counts toward the 30 calendar days.
Eligibility for Emergency Paid Sick Leave:
Calculating Regular Rate of Pay for Paid Leave:
- It’s not as simple as you might think. An employer must take the average of the employee’s regular rate of pay over the six-month period prior to the commencement of the leave. Thus, for example, if an employee got a pay increase in the last six months, the regular rate would be the weighted average of the two pay rates over the six months period.
- As under the FLSA, the “regular rate” must include such things as commissions, many bonuses, piece rate, and tips.
Calculating the Number of Hours That Must Be Paid:
- Overtime hours must be included when calculating pay to employees under the paid leave expansions to the FMLA. For example, if an employee would have been scheduled to work 45 hours per week, the expanded FMLA leave must be paid for 45 hours, though no premium pay is due for hours over 40.
- Paid sick time, however, is limited to 80 hours over a two-week period for a full-time employee, no matter how much overtime an employee may typically work.
- A part-time employee is entitled to pay based on his/her average number of hours worked in a two-week period. It can be calculated based on the number of hours the employee is normally scheduled to work, if known. Otherwise, or if the employee’s hours vary, an employer may use a six-month average to calculate average daily hours.
- In short, the FFCRA provides full employment security to HR professionals who are responsible for payroll functions!
Coordinating Paid Leave Benefits:
- Employers cannot require employees to use leave accrued through an employer’s preexisting paid-leave policies to satisfy the paid leave requirements of the Act.
- An employee who is home to care for a child because of a school or place of care is closed gets a total of twelve weeks of paid leave combining both emergency paid sick leave and expanded FMLA leave. The employee would receive two weeks of paid emergency sick leave first, during the ten-day period before paid FMLA leave begins. The employee would then receive up to ten weeks of paid FMLA leave.
- The latest DOL guidance reinforces that the FFCRA does not convert all prior forms of FMLA leave to paid leave.
- An employer cannot deny paid leave under the FFCRA if, prior to the effective date of the Act, it gave paid leave to an employee for a reason covered under the Act.
The Department of Labor statement announcing the guidance advised that the information released yesterday was only the first of multiple rounds of compliance assistance the Department intended to provide. Later this week the Department is expected to release additional fact sheets, question and answer forms, and the workplace notice poster required for most employers covered by the Act.
As employers across the country face unprecedented challenges posed by COVID-19, the attorneys at K|W|W will keep you up to date on the laws and regulations affecting your workforce. As always, your workforce is our priority.
The K|W|W Team