DOL Answers More Questions About Paid Sick Leave and Expanded Family and Medical Leave Under the FFCRA

On April 6, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued yet another series of questions and answers to provide additional guidance regarding the protections and relief offered by the new Families First Coronavirus Response Act (FFCRA). The DOL also reorganized its FFCRA questions page by categories (definitions, eligibility, coverage, application, and enforcement), in addition to its questions and answers by number.

As noted in our recent blog post, the FFCRA provides expanded paid and unpaid family and medical leave broader than the Family and Medical Leave Act of 1993 (FMLA) and paid sick leave to certain employees affected by COVID-19. In addition, it provides help for individuals and businesses impacted by the pandemic—like reimbursement through a refundable tax credit available to private employers. The FFCRA became effective April 1, 2020, and will expire at the end of the year. It is enforced by the WHD.

The March 24 guidance clarified the effective date of the FFCRA and addressed critical questions, such as: no retroactive application of the new leave; how an employer must count the number of their employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate paid leave wages to which employees are entitled under this law (see answers to questions numbered 1-14).

The March 27 guidance addressed several concerns regarding the implementation of the FFCRA, such as: what documents employees must provide when requesting to take leave under the FFCRA; what records employers must keep when employees take leave under the FFCRA; clarification that FFCRA leave is not available when employers are closed, furlough employees, or do not have work or telework for employee; interaction between teleworking and leave taken for child care needs; authorizing employers’ option to allow certain intermittent FFCRA leave; and permitting employers to supplement FFCRA leave paid at 2/3 rate with employer-paid leave up to normal earning rate if employees select supplementation (see answers to questions numbered 15-37).

The March 28 guidance responded to key questions that addressed new issues or made notable revisions or clarification to earlier answered questions. The March 28 guidance focused on topics such as: which employees are eligible for leave; which employers are covered; descriptions of exemptions by small employers; definition of “son or daughter;” employees’ rights to return to work after leave; lack of effect of prior FMLA leave on paid sick leave; cumulative amount of leave available under FMLA and expanded FMLA; definitions of full-time and part-time employees for paid sick leave; eligibility of public sector employees; definitions of “health care provider” who can provide advice to self-quarantine and who can be excluded from leave; and definition of emergency responder (see answers to questions numbered 38-59).

The April 1 guidance answered questions regarding the effect of shelter-in-place and stay-at-home orders; eligibility for paid sick leave; need for an employee to care for a child including when two parents are home; staffing company employee counts; calculation of pay to seasonal workers; interaction with workers’ compensation or temporary disability benefits; and the DOL’s non-enforcement period (see answers to questions numbered 60-79).

The most recent April 6 guidance explained when an employer may require employees to use existing leave under employer policies and when employees may choose to do so (see Question 86 below); more effects of stay-at-home and shelter-in-place orders (see Question 87 below); how to compute average regular rates and the related six-month period; acceptable rounding of the number of hours of paid sick leave; and potential individual recovery if the DOL brings an enforcement action for violation of the FFCRA (see answers to questions 80-88 below with added emphasis).

DEFINITIONS

“Paid sick leave” – means paid leave under the Emergency Paid Sick Leave Act.

“Expanded family and medical leave” – means paid leave under the Emergency Family and Medical Leave Expansion Act.

QUESTIONS & ANSWERS 80-88

80. How do I compute the number of hours of paid sick leave for my employee who has irregular hours?

Generally, under the FFCRA, you are required to provide an employee with paid sick leave equal to the number of hours that employee is scheduled to work, on average, over a two-week period, up to a maximum of 80 hours.

If your employee works an irregular schedule such that it is not possible to determine what hours he or she would normally work over a two-week period, you must estimate the number of hours. The estimate must be based on the average number of hours your employee was scheduled to work per calendar day (not workday) over the six-month period ending on the first day of paid sick leave. This average must include all scheduled hours, including both hours actually worked and hours for which the employee took leave.

Consider the examples below involving two employees with irregular schedules who take leave on April 13, 2020. For both employees, the six-month period used for estimating average hours consists of 183 calendar days from October 14, 2019, to April 13, 2020.

During that six-month period, the first employee worked 1,150 hours over 130 workdays and took a total of 50 hours of personal and medical leave. The total number of hours the employee was scheduled to work, including all leave taken, was 1,200 hours. The number of hours per calendar day is computed by dividing 1,200 hours by the 183 calendar days, which results in 6.557 hours per calendar day. The two-week average is computed by multiplying the per calendar day average by 14, which results in 91.8 hours. Since this is greater than the statutory maximum of 80 hours, the first employee, who works full-time, is therefore entitled to 80 hours of paid sick leave.

The second employee, in contrast, worked 550 hours over 100 workdays and took a total of 100 hours of personal and medical leave. The total number of hours the employee was scheduled to work, including all leave taken, was 650 hours. The number of hours per calendar day is computed by dividing 650 hours by the 183 calendar days, which is 3.55 hours per calendar day. The two-week average is computed by multiplying the per calendar day average by 14, which results in 49.7 hours. The second employee, who works part-time, is therefore entitled to 49.7 hours of paid sick leave.

For each hour of paid sick leave taken, you are required to pay the employee an amount equal to at least that employee’s regular rate (see Question 82 below).

81. How do I compute the number of hours I must pay my employee who has irregular hours for each day of expanded family and medical leave taken?

Generally, under the FFCRA, you are required to pay your employee for each day of expanded family and medical leave taken based on the number of hours the employee was normally scheduled to work that day. If your employee works an irregular schedule such that it is not possible to determine the number of hours he or she would normally work on that day, and the employee has been employed for at least six months, you must determine the employee’s average workday hours, including any leave hours. The average must be based on the number of hours your employee was scheduled to work per workday (not calendar day) divided by the number of workdays over the six-month period ending on the first day of your employee’s paid expanded family and medical leave. This average must include all scheduled hours, including both hours actually worked and hours for which the employee took leave.

Consider the examples below involving two employees with irregular schedules who take leave on April 13, 2020. For both employees, the six-month period would consist of 183 calendar days from October 14, 2019, to April 13, 2020.

The first employee worked 1,150 hours over 130 workdays and took a total of 50 hours of personal and medical leave. The total number of hours the employee was scheduled to work (including all leave taken) was 1,200 hours. The number of hours per workday is computed by dividing 1,200 hours by the 130 workdays, which is 9.2 hours per workday. You must therefore pay the first employee for 9.2 hours per workday times 2/3 his or her regular rate for each day of expanded family and medical leave taken, subject to a $200 per day cap and $10,000 maximum (see Question 7).

The second employee, in contrast, worked 550 hours over 100 workdays and took a total of 100 hours of personal and medical leave. The total number of hours the employee was scheduled to work, including all leave taken, was 650 hours. The number of hours per workday is computed by dividing 650 hours by the 100 workdays, which is 6.5 hours per workday. You must therefore pay the second employee for 6.5 hours per workday times 2/3 his or her regular rate for each day of expanded family and medical leave taken, subject to a $200 per day cap and $10,000 maximum (see Question 7).

82. How do I compute my employee’s average regular rate for the purpose of the FFCRA?

As an employer, you are required to pay your employee based on his or her average regular rate for each hour of paid sick leave or expanded family and medical leave taken. The average regular rate must be computed over all full workweeks during the six-month period ending on the first day that paid sick leave or expanded family and medical leave is taken.

If during the past six months, you paid your employee exclusively through a fixed hourly wage or a salary equivalent, the average regular rate would simply equal the hourly wage or the hourly-equivalent of their salary. But if your employee were paid through a different compensation arrangement (such as piece rate) or received other types of payments (such as commissions or tips), his or her regular rate may fluctuate week to week, and you may compute the average regular rate using these steps:

• First, you must compute the employee’s non-excludable remuneration for each full workweek during the six-month period. Notably, commissions and piece-rate pay counts towards this amount. See 29 CFR part 778. Tips, however, count only to the extent that you apply them towards minimum wage obligations (i.e., you take a tip credit). See 29 CFR part 531.60. Overtime premiums do not count towards your employee’s regular rate. Please note that unlike when computing average hours (see Questions 5 and 8), you should not count payments your employee received for taking leave as part of the regular rate.
• Second, you must compute the number of hours the employee actually worked for each full workweek during the six-month period. Please note that, unlike when computing average hours (see Questions 5 and 8), you do not count hours when the employee took leave.
• Third, you then divide the sum of all non-excludable remuneration received over the six-month period by the sum of all countable hours worked in that same time period. The result is the average regular rate.

Consider the examples below involving an employee who takes leave on April 13, 2020. The six-month period would run from Monday, October 14, 2019, to Monday, April 13, 2020. Assuming you use a Monday to Sunday workweek, there are twenty-six full workweeks in that period, which includes 182 calendar days. Please note this is one day fewer than the 183 calendar days falling between October 14, 2019, and April 13, 2020, because the date the leave is taken, April 13, 2020, is a Monday that does not fall in any of the twenty-six full workweeks.

Suppose your employee’s non-excludable remuneration and hours worked are as follows:

Week	Non-Excludable Remuneration	Hours Worked
1	$1,100	50
2	$1,300	60
3	$700	35
4	$700	35
5	$1,100	50
6	$700	50
7	$600	30
8	$700	50
9	$1,100	50
10	$700	50
11	$700	35
12	$1,300	60
13	$700	35
14	$1,300	60
15	$1,100	50
16	$1,300	60
17	$1,100	50
18	$600	30
19	$700	35
20	$700	50
21	$1,100	50
22	$700	30
23	$700	30
24	$700	30
25	$800	35
26	$800	50
TOTAL	$23,000	1,150

In total, the employee worked 1,150 hours and received $23,000 in non-excludable remuneration. The average regular rate is therefore $20.00 ($23,000 divided by 1,150 hours).

83. How do I compute the average regular rate of my employee who is paid a fixed salary each workweek?

It depends. If you pay your employee exclusively through a fixed salary that is understood to be compensation for a specific number of hours of work in each workweek, the employee’s average regular rate would simply be the hourly equivalent of that salary.

However, if the fixed salary is understood to compensate the employee regardless of the number of hours of work in each workweek, then the regular rate may vary alongside the number of hours worked for each workweek. In this case, you would have to add up the salary you paid your employee overall full workweeks in the past six months and divide that sum by the total number of hours worked in those workweeks, as described in Question 82. If you lack records for the number of hours your employee worked, you should use a reasonable estimate.

84. May I round when computing the number of hours of paid sick leave I must provide an employee with an irregular schedule or the number of hours I must pay such an employee for each day of expanded family and medical leave taken?

As an employer, generally, yes. It is common and acceptable for employers to round to the nearest tenth, quarter, or half-hour when determining an employee’s hours worked. But if you choose to round, you must use a consistent rounding principle. You may not, for instance, round for some employees who request leave but not others. For the purposes of computing hours under the FFCRA, you may round to the nearest time increment that you customarily use to track the employee’s hours worked. For instance, if you typically track work time in quarter-hour increments, you may round to the nearest quarter-hour. But you may not round to the nearest quarter-hour if you typically track time in tenth-of-an-hour increments.

As an example, the number of hours of paid sick leave for the first employee discussed in Question 81 is computed as 14 days times 1,200 hours divided by 183 calendar days, which is 91.803 hours. If you typically track time in half-hour increments, you would round to 92 hours. If you typically track time in quarter-hour increments, you would round to 91.75 hours. And if you typically track time in tenth-hour increments, you would to round to 91.8 hours.

85. What six-month period is used to calculate the regular rate under the FFCRA when, for example, my employee takes paid sick leave, gets better, and then one week (or one month or three months) later, takes expanded family and medical leave? Or perhaps the employee takes intermittent leave throughout several months in 2020? In other words, do I have to determine and review a new six-month period every time my employee takes leave?

No. As an employer, you should identify the six-month period to calculate each employee’s regular rate under the FFCRA based on the first day the employee takes paid sick leave or expanded family and medical leave. That six-month period will be used to calculate all paid sick leave and expanded family and medical leave the employee takes under the FFCRA. If your employee has been employed for less than six months, you may compute the average regular rate over the entire period during which the employee was employed.

86. Under what circumstances may an employer require an employee to use his or her existing leave under a company policy and when does the choice belong to the employee under the Department’s regulations, specifically 29 CFR 826.23(c), 826.24(d), 826.60(b) and 826.160(c)?

Paid sick leave under the Emergency Paid Sick Leave Act is in addition to any form of paid or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement. An employer may not require employer-provided paid leave to run concurrently with—that is, cover the same hours as—paid sick leave under the Emergency Paid Sick Leave Act (see also Question 32).

In contrast, an employer may require that any paid leave available to an employee under the employer’s policies to allow an employee to care for his or her child or children because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19 related reason run concurrently with paid expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act. In this situation, the employer must pay the employee’s full pay during the leave until the employee has exhausted available paid leave under the employer’s plan—including vacation and/or personal leave (typically not sick or medical leave). However, the employer may only obtain tax credits for wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate limits in the Emergency Family and Medical Leave Expansion Act ($200 per day or $10,000 in total). If the employee exhausts available paid leave under the employer’s plan, but has more paid expanded and medical family leave available, the employee will receive any remaining paid expanded and medical family in the amounts and subject to the daily and aggregate limits in the Emergency Family and Medical Leave Expansion Act. Additionally, provided both an employer and employee agree, and subject to federal or state law, paid leave provided by an employer may supplement 2/3 pay under the Emergency Family and Medical Leave Expansion Act so that the employee may receive the full amount of the employee’s normal compensation.

Finally, an employee may elect—but may not be required by the employer—to take paid sick leave under the Emergency Paid Sick Leave Act or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both. If, however, an employee has used some or all paid sick leave under the Emergency Paid Sick Leave Act, any remaining portion of that employee’s first two weeks of expanded family and medical leave may be unpaid. During this period of unpaid leave under the Emergency Family and Medical Leave Expansion Act, the employee may choose—but the employer may not require the employee—to use paid leave under the employer’s policies that would be available to the employee to take in order to care for the employee’s child or children because their school or place of care is closed or the child care provider is unavailable due to a COVID-19 related reason concurrently with the unpaid leave.

87. Are stay-at-home and shelter-in-place orders the same as quarantine or isolation orders? If so, when can I take leave under the FFCRA for reasons relating to one of those orders?

Yes, as explained in Question 60, for purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority. However, in order for such an order to qualify you for leave, being subject to the order must be the reason you are unable to perform work (or telework) that your employer has for you. You may not take paid leave due to such an order if your employer does not have work for you to perform as a result of the order or for other reasons.

For example, if you are prohibited from leaving a containment zone and your employer remains open outside the containment zone and has work you cannot perform because you cannot leave the containment zone, you may take paid leave under the FFCRA. Similarly, if you are ordered to stay at home by a government official for fourteen days because you were on a cruise ship where other passengers tested positive for COVID-19, and your employer has work for you to do, you are also entitled to paid sick leave if you cannot work (or telework) because of the order. If, however, your employer closed one or more locations because of a quarantine or isolation order and, as a result of that closure, there was no work for you to perform, you are not entitled to leave under the FFCRA and should seek unemployment compensation through your State Unemployment Insurance Office.

88. If my employer refuses to provide paid sick leave or refuses to compensate me for taking paid sick leave, and the Department brings an enforcement action on my behalf, am I entitled to recover just the federal minimum wage of $7.25 per hour of leave, or can I recover the entire amount due under the FFCRA?

If the Department brings an enforcement action on your behalf, you are entitled to recover the full amount due under the FFCRA (see Question 7), which is the greater of your regular rate (see Question 8) or the applicable minimum wage (federal, state, or local) for each hour of uncompensated paid sick leave taken, in each case, subject to the applicable FFCRA maximums (see Question 7). The FFCRA and the Department’s regulations state that an employer who does not compensate you for taking paid sick leave is “considered to have failed to pay the minimum wage … and shall be subject to the enforcement provisions” of the Fair Labor Standards Act. Those enforcement provisions state that the employer “shall be liable to the employee or employees affected in the amount of their unpaid minimum wages.” For the purposes of the FFCRA, the “amount of unpaid minimum wages” does not refer to the federal minimum wage of $7.25 per hour, but rather to the hourly wage at which the employer must compensate you for taking paid sick leave, which is, generally, the greater of your regular rate or the applicable minimum wage (federal, state, or local).

Thus, if the Department brings an enforcement action on your behalf, your recovery against an employer that refuses to compensate you for taking paid sick leave would not be limited to the federal minimum wage of $7.25 per hour if your regular rate or an applicable state or local minimum wage were higher. For example, if your regular rate were $30 per hour and you lawfully took 20 hours of paid sick leave to self-quarantine based on the advice of a health care provider, you may recover $600 ($30 per hour times 20 hours) from your employer. As another example, if you were entitled to a state or local minimum wage of $15 and lawfully took 20 hours of paid sick leave for the same reason, you may recover $300 ($15 per hour times 20 hours). However, you may not recover more than the amount due under the FFCRA. For instance, if your employer initially agreed to pay your full hourly rate of $30 per hour to allow you to take paid sick leave to care for your child whose school is closed, but then pays you only 2/3 of your hourly rate, as required by the FFCRA, you may not recover the unpaid portion of the initially agreed amount because your employer was not required by the FFCRA to pay that portion.

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On its COVID-19 and the American Workplace webpage, the DOL has also provided a Fact Sheet for Employers and one for employees, workplace posters required for covered employers, a temporary rule containing regulations, and a webinar with downloadable slides.

Williams Parker has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials.