The Department of Labor (DOL) issued a set of FAQs for employers to consider when interpreting their obligations under the Families First Coronavirus Response Act (Act).The Act created two primary benefits for employees of all public agencies and private employers with fewer than 500 employees:
- The Emergency Paid Sick Leave Act (EPSL) requires employers to provide two-weeks (80 hours) of paid emergency sick leave to employees who are unable to work or telework for various COVID-19 related concerns; and
- The Emergency Family and Medical Leave Expansion Act (EFMLA) provides that an employee who has worked for at least 30 days for employers with fewer than 500 employees (or the “30/500” rule) may be entitled to emergency family medical leave if unable to work or telework because they must care for a child under the age of 18 if the child’s school is closed or the child’s child care provider is unavailable due to COVID-19.
Below are explanations and practical tips to help you follow the DOL’s guidance.
What is the effective date of the Act? Should I be providing leave now?
The Act is effective April 1, 2020, and is not retroactive. In other words, if you provide additional paid leave from now until April 1, 2020, or if you’ve provided it before now, you are still obligated to comply with the Act and your employees will receive additional leave benefits by way of EPSL and EFMLA.
DOL’s first set of guidance did not indicate what, if any, credit you could get for providing paid sick or FMLA-type leave before now. While not required—now, maybe more than ever—you should be as flexible as possible with current leave policies and their use by your employees and their families. This could mean waiving the notice requirements for use of leave or allowing multiple employees in the same position to take leave on the same day. Keeping good relations with your employees now always helps in disputes down the road.
Pro tip: You can always advance leave as a loan to the employee but should do so with a valid authorization.
Am I required to provide EFMLA and EPSL? Who do I count to reach 500, and when?
If you are a public employer, you are required to provide EFMLA and EPSL. If you are a private employer, you are obligated to provide EFMLA if you come under the “30/500 Rule”—if you have fewer than 500 employees and the employee seeking leave has been employed for 30 days.
The 500 employees rule includes any employees on leave, temp-agency employees, or any other employees who are jointly employed by you (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll). Independent contractors are excluded.
DOL’s guidance informs employers they should rely on the new “joint employer test” under the FLSA (see Yours, Mine, or Ours? The DOL Issues New Joint Employer Guidance) in considering whether EPSL applies, and should rely on the “integrated employer test” under the FMLA in considering whether EFMLA applies. This is certainly something to consider if your company has an ownership interest in another company or is owned by another entity. Now is the time to review your corporate organizational chart.
Pro tip #1: You may have reasons to tread carefully in claiming joint employer status to jump the 500-employee threshold. For example, if your company is part of a larger organization, leadership may have reasons for not wanting the whole organization to be legally deemed one employer. Now is a good time to balance those interests—talk to your leaders and your counsel.
Pro tip #2: For EFMLA leave, the 500 number addresses employer size—not worksite size. Don’t get this confused with the “50/75” rule for regular FMLA leave, where an employee can look 75 miles around their worksite and aggregate their co-workers to jump the 50-employee threshold and become eligible for regular FMLA leave.
Pro tip #3: You determine the number of employees at the time your employee’s leave is to be taken. This timing aspect is key since many employers are faced with laying off workers temporarily. Before any further layoffs are conducted, employers teetering above the 500-employee threshold should discern whether layoffs could be more costly by requiring compliance with the EFMLA and EPSL.
Pro tip #4: The time an employee has spent as a temp with the employer counts toward the 30-day requirement.
What is the regular rate of pay?
The regular rate of pay used to calculate an employee’s paid benefit is the average of the employee’s regular rate over a period of up to six months prior to the date leave begins.
If the employee has not worked for your company for six months, the regular rate used to calculate the paid leave is the average of the employee’s regular rate of pay for each week they have worked for your current employer.
If your employees earn commissions, tips, or piece-rate wages, ensure you calculate the regular rate by factoring in this additional compensation.
Pro tip: be particularly careful with employees with varying schedules, overtime hours, and part-time hours.
How many times can an employee take EPSL?
Employees can take EPSL until they use up 80 hours. There are multiple qualifying reasons for EPSL, such as self-quarantine, caring for a sick spouse, or a child who has no child care. If the employee is in quarantine, sick, or caring for a sick person, they likely will take the EPSL in a full 80-hour lump sum, since that would be consistent with Center for Disease Control guidance.
However, if the employee has to care for a child because a child care provider is unavailable, then leave may be more intermittent. For example, an employee’s spouse works the night shift at a grocery store and can care for the child during the day. However, your employee needs to leave two hours early to be home for the child when the spouse leaves for work.
Again, though, each full-time employee only gets 80 total hours of EPSL.
Closing Pro tip: A year after the housing market crash in 2008 and the subsequent financial woes, federal courts saw a large influx of employment claims. A year from now, hopefully the world will be calmer, but we may be looking back at decisions made right now. It is pertinent that if you are uncertain, you speak with counsel.
Now is the time to be careful and flexible. Stay safe!