Tag Archive for: FMLA

Sixth Circuit holds that request for FMLA leave is protected even if the employee is not entitled to FMLA leave much less takes FMLA leave

In Milman v. Fieger & Fieger, LLC, the Sixth Circuit held that a equest for FMLA leave is protected even if the employee is not entitled to FMLA leave much less takes FMLA leave. There the plaintiff claimed she’d been retaliated against for requesting FMLA leave, and her employer responded that she had not been entitled to FMLA leave and had not actually taken FMLA leave. The Sixth Circuit rejected the company’s arguments, holding that her mere request was itself protected against retaliation.

Thus, the scope of protected activity under the FMLA starts with the first step contemplated under the Act’s procedures: a request made to the employer. That request, moreover, need not lead to entitlement in order to be protected.

DOL issues Fact Sheet #280 reminding that FMLA is available for serious mental health conditions

The DOL issued Fact Sheet #280 reminding that FMLA is available for serious mental health conditions, that involve no physical impairment, whether involving the employee or their spouse, child, or parent.

Third Circuit holds that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation produces credible evidence of a violation warranting discharge

In Canada v. Samuel Grossi & Sons, Inc., Third Circuit held that an employer’s decision to conduct an investigation can be used as evidence of pretext even if the investigation later produces credible evidence of a violation warranting discharge. In the case, the company asserted that it had terminated an employee after a search of his phone confirmed he’d been soliciting sex workers during working hours. The employee asserted that the company had looked at his phone only in retaliation when he requested FMLA; he also asserted other claims including FMLA interference, disability-related claims and racial discrimination.

For the reasons we have already explained, we reject a rule that incentivizes employers to dig up reasons to fire an employee who has engaged in protected activity, and then immunizes them from suit based upon a subsequent fortuitous discovery of grounds for termination.

Here, as in Hobgood, there is a “ ‘convincing mosaic’ of circumstantial evidence,”63 which, when taken as a whole and viewed in a light favorable to Canada’s case, could convince a reasonable jury that he was the victim of unlawful retaliation.64 In other words, the evidence could support a finding that the search itself was retaliatory.

DOL issues Field Assistance Bulletin reminding employers that federal wage-hour requirements still apply even when employees are working remotely

In its Field Assistance Bulletin 2023-1 , the DOL reminds employers that federal wage-hour requirements still apply even when employees are working remotely. Thus for example, employers still must comply with the requirements to provide and document meal periods and rest breaks, as well as lactation breaks, and although employers may suspect that a remote worker is taking unauthorized breaks, the company may not simply assume time should be unpaid. The DOL also discusses an employer’s ability to either schedule work hours (assign remote workers a particular shift of hours to be worked) or assign a certain number of hours to be worked each day. The DOL discusses how employers can instruct employees in a variety of telework scenarios to clock in/clock out at the beginning, the end and throughout the day.

The DOL reminds employers though that, when they know or have reason to believe the employee is working outside recorded hours, the time must be recorded and paid as hours worked, even if the employee is themself choosing to work “off the clock” as it were from home. The DOL cites to its Field Assistance Bulleting 2020-5, which discussed how employers can instruct workers to record all hours worked, including such time, even where not requested, scheduled or authorized by the company.

Employers are reminded that in addition to the federal requirements discussed in the DOL’s Field Assistance Bulletin, additional state and local requirements might apply, including in Colorado for example the CDLE‘s COMPS order and related requirements.

Tenth Circuit rejects Cat’s Paw argument holding that review of termination decision by an independent decisionmaker breaks causal link on retaliation claim

In Parker v. United AirLines, Inc., the Tenth Circuit rejected the plaintiff’s Cat’s Paw argument holding that the review of her termination by an independent decisionmaker broke any causal link on her claim of retaliation.

Retaliation entails a causal link between an employee’s use of FMLA leave and the firing. That causal link is broken when an independent decisionmaker conducts her own investigation and decides to fire the employee.

The plaintiff, who had been on FMLA, argued that her use of FMLA leave “sparked retaliation from her supervisor” who, when the opportunity allegedly presented itself, recommended her discharge and continued to do so even when she appealed her decision to a higher level of management. She argued that her supervisor’s alleged contributions to the process constituted proof in her favor under the so-called Cat’s Paw theory. “That theory imputes a supervisor’s motive to an employer if the motive influenced the employer’s decision.” The Tenth Circuit rejected that argument.

(The Cat’s Paw theory) doesn’t apply when independent decisionmakers “conduct their own investigations without relying on biased subordinates.”

Colorado Supreme Court upholds state paid leave program

In 2020 Colorado voter passed Proposition 118, which calls for the creation of a state agency that will (not unlike current workers compensation and unemployment agencies) provide paid family leave commencing January 1, 2023. In Chronos Builders, Inc. v. CDLE, a unanimous Colorado Supreme Court upheld Proposition 118, holding that the premium the new agency will charge to fund such benefits is not a tax in violation “of section (8)(a) of the Taxpayer’s Bill of Rights (‘TABOR’), which provides, as relevant here, that ‘[a]ny income tax law change . . . shall also require all taxable net income to be taxed at one rate, . . . with no added tax or surcharge.’ Colo. Const. art. X, § 20(8)(a).”

We conclude that the premium collected by the Division does not implicate section (8)(a) because the relevant provision of that section concerns changes to “income tax law.” The Act, a family and medical leave law, is not an income tax law or a change to such a law. Moreover, the premium collected pursuant to the Act is a fee used to fund specific services, rather than a tax or comparable surcharge collected to defray general government expenses. We therefore hold that the Act does not violate section (8)(a).

Maryland joins ranks of states mandating some form of paid sick leave

Law 360 ran a recent article noting that Maryland has joined the ranks of at least 10 states (California, Colorado, Connecticut, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington, Washington, D.C.) that have already mandated some form of paid sick leave. Employers are reminded to check each jurisdiction’s laws as they vary widely, some mandate that employers provide paid sick leave, some call for the creation of state-administered and/or privately insured paid leave programs, and even within those broad categories the amount of what kinds of paid leave required vary widely including for employees of varying seniority. Additionally numerous cities and local governments have implemented their own array of programs.

Also warranting specific and frequent reviews of potentially applicable paid sick leave mandates, these laws are not infrequently the subject of litigation as they roll out. For example, Colorado employers may wish to follow a recent Colorado Supreme Court case, no. 22SC78 (formerly Colorado Court of Appeals case no. 22CA91), titled Chronos Builders, LLC v. Colorado Department of Labor and Employment, Division of Family and Medical Leave Insurance, in which the Supreme Court accepted certiorari, agreeing to hear “whether the Paid Family and Medical Leave Insurance Act’s premium violates Section (8)(a) of TABOR” (TABOR being a 1992 state constitutional amendment limiting the state’s financing capabilities).

DOL issues guidance on FMLA and FMLA retaliation

The DOL issued Field Assistance Bulletin 2022-02 to provide updated guidance on the anti-retaliation laws it oversees, including the FMLA and FLSA. The guidance provides a series of hypotheticals that illustrate when an employer might or might not have committed prohibited retaliation. HR professionals and employment lawyers may be interested in reviewing the guidance to obtain a sense of where DOL believes the line is crossed.

For example, DOL discusses whether unlawful retaliation has occurred (the names are the names DOL provides for each hypothetical employee and are offered for readers’ convenience in looking up a particular hypothetical of interest):

  • When an employee is terminated after telling a cow0rker that he has called DOL to ask about overtime rights? See hypothetical “Nelson.”
  • When a new mother is told to get back to work then eventually sent home after taking an extra long lactation break during which she was not able to finish pumping then asking if she would be allowed a break later in the day to do so. See hypothetical “Aisha.”
  • When an employee stays home on FMLA leave to care for his child but despite the FMLA leave having been approved, has three points assigned (without any disciplinary consequences) to his tally of absence points under the employer’s no-fault policy, which provides that every absence, whether approved or not, triggers three such points, with no discipline, until ten total points are accumulated in a year, at which point the employee is subject to possible discipline up to and including discharge. See hypothetical “Jaime.”
  • When the front-desk clerk takes a series of days off for migraines, comprising first 3 days, then 1 day, then 2 days, spanning a 4-month period, and, although all the days were approved under the FMLA, the hotel reduces her to part-time because front desk position requires a full-time reliable daily presence. See hypothetical “Deborah.”

Where the DOL would find violations in those hypotheticals, it also recites what relief it would require of the company.

The guidance also includes hypotheticals related to visa programs.

DOL updates its Field Assistance Bulletin to confirm that teledoc visits may qualify as medical visits under the FMLA

HR professionals are already well aware that the FMLA is triggered by, among other things, a “serious health condition,” which, oversimplifying, consists of (1) overnight “inpatient care” such as in a hospital, as well as “any period of incapacity” following such inpatient care and (2) “continuing treatment by a health care provider.” The FMLA regulations define the term “treatment” to include “examinations to determine if a serious health condition exists and evaluations of the condition.” See 29 CFR § 825.113(c). And further confirm that only “an in-person visit to a health care provider” will count towards considering “continuing treatment.” See 29 CFR § 825.115(a)(3).

Now, as so-called telemedicine (aka, “teledoc”) appointments become more popular, especially during the current pandemic, the DOL just updated its Field Assistance Bulletin to confirm that some teledoc appointments may count in-person “continuing treatment.”

To be considered an “in-person” visit, the telemedicine visit must include:
• an examination, evaluation, or treatment by a health care provider;
• be permitted and accepted by state licensing authorities; and,
• generally, should be performed by video conference.

Documentation and forms for requesting FFCRA coronavirus-related sick leave and coronavirus-related FMLA leave

In a prior post, it was noted that the DOL had issued its final rules regulating the FFCRA. As explained there, the DOL regulations summarize the documentation that employers should keep for coronavirus-sick and coronavirus-FMLA leave granted under the FFCRA.

→Reminder: FFCRA-covered employers are reminded that in addition to this required documentation, they must have already posted-distributed an FFCRA poster.

In terms of the documentation required in the new DOL regulations, the IRS has also issued its own guidance regarding documentation that will be required for FFCRA (in other words, CARES Act) tax credits:

How Should an Employer Substantiate Eligibility for Tax Credits for Qualified Leave Wages?

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if, in addition to the information set forth in FAQ 44 (“What information should an Eligible Employer receive from an employee and maintain to substantiate eligibility for the sick leave or family leave credits?”), the employer creates and maintains records that include the following information:

  1. Documentation to show how the employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework and qualified sick leave and qualified family leave.
  2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages. See FAQ 31 (“Determining the Amount of Allocable Qualified Health Plan Expenses”) for methods to compute this allocation.
  3. Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS.
  4. Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941).

An Eligible Employer should keep all records of employment taxes for at least 4 years after the date the tax becomes due or is paid, whichever comes later.  These should be available for IRS review.

Employers looking to develop forms for requesting the coronavirus-related sick leave or the coronavirus-related FMLA leave may wish to start with two such forms recently published by the Society for Human Resource Management (SHRM) on its coronavirus-page of resources, then consult with their own legal counsel and tax professional to ensure they will not only comply with the FFCRA’s requirements but also be able to assert the available tax credits.

DOL issues regulations under the FFCRA regarding newly mandated coronavirus sick- and FMLA- leave

The DOL has issued regulations implementing the FFCRA’s newly mandated coronavirus sick- and FMLA-leave. The regulations address many topics, including the following highlights. Look for additional information as the new regulations are analyzed.

  • The definition of “Telework,” which includes the statement that an employee is not “able to Telework” if there are any “extenuating circumstances (such as serious COVID-19 symptoms) that prevent
    the Employee from performing that work” (parenthetical in original), sec. 826.10.
  • A flesh-out of each of the six reasons that qualify for the new paid coronavirus sick leave, sec. 826.20. This includes specifically with regard to reason 4 (“seeking medical diagnosis for COVID-19”) that the employee need merely be “experiencing any of the” recognized symptoms of COVID-19, which be only a “dry cough.” However, leave is limited to the time the employee is ” unable to work because the Employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.”
  • The DOL also clarified in sec. 826.20(b), and especially in its prefatory language explaining that new regulatory language, that both the new coronavirus sick- and FMLA- leaves will be available when a parent is needed to care for a child who is under 18 years old or (clarifying what had seemed language in the new law that contradicted the actual FMLA) who is “18 years of age or older and incapable of self-care because of a mental or physical disability.”
  • How the amount of coronavirus sick- and FMLA- leave should be calculated, and how pay for the same should be calculated, sec. 826.21-.25.
  • How eligibility for the new coronavirus FMLA-leave is determined. As previously noted, the new coronavirus sick leave is available to all employees of a covered employer, while the new coronavirus FMLA leave is available only to employees who have been on payroll for at least 30 calendar days. Sec. 826.30 explains how that is to be calculated.
  • How employees are to be counted to determine if the employer is covered, i.e., if the employer employers fewer than 500 employees, sec. 826.40. All employees are to be counted. One part-time employee counts as one employee (not 1/2 for example). Employees who work for the company count even if they also count as employees of a Joint Employer. Likewise, true independent contractors are not counted. Employees of affiliated entities generally will count towards their actual employer (not its affiliate), again absent joint-employer status.
  • Sec. 826.40 also explains that the small business exemption available to employers of fewer than 50 is available, upon self-certification (that must be documented, preserved but not filed with DOL unless requested) by “an authorized officer of the business” that:

(i) The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

(ii) The absence of the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or

(iii) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.

  • How intermittent leave will work and that, unlike regular FMLA leave, intermittent leave for both the new coronavirus sick- and FMLA-leaves will be available ” only if the Employer and Employee agree. The Employer and Employee may memorialize in writing any agreement under this section, but a clear and mutual understanding between the parties is sufficient.” Sec. 826.50. Also that these new leaves are available to an employee who has been offered Telework “only when the Employee is unavailable to Telework because of a COVID-19 related reason” (see also above regarding the definition of Telework).
  • Sec. 826.60 provides for the two new leaves to run concurrently in certain situations, if both are needed, with the new coronavirus sick leave being used first, and an employee who exhausts these paid leaves may choose, but not be required to substitute other paid leave to cover the unpaid portion of any gap.
  • Sec. 826. 90 explains the types of notice that an employee can be required to give, which include rules generally prohibiting the requirement of notice sooner than “after the first workday (or portion thereof) for which an Employee takes” the new leave (parenthetical in original) and requiring an employer to give notice and an opportunity to provide required documentation prior to denying the request for leave. For example sec. 826.90 provides, as follows:

 Notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave or Expanded Family and Medical Leave. After the first workday, it will be reasonable for an Employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for notice to be given by the Employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the Employee is unable to do so personally.

  • Sec. 826. 100 provides further explanation of the kinds of documentation that can be required for particular types of leave needed.

 826.100 Documentation of Need for Leave.

(a) An Employee is required to provide the Employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA [sick leave] or Expanded Family and Medical Leave under the EFMLEA:

(1) Employee’s name;

(2) Date(s) for which leave is requested;

(3) Qualifying reason for the leave; and

(4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.

(b) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(i), an Employee must additionally provide the Employer with the name of the government entity that issued the Quarantine or Isolation Order.

(c) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(ii) an Employee must additionally provide the Employer with the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19.

(d) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(iii) an Employee must additionally provide the Employer with either:

(1) the name of the government entity that issued the Quarantine or Isolation Order to which the individual being care for is subject; or

(2) The name of the health care provider who advised the individual being cared for to self quarantine due to concerns related to COVID-19.

(e) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(v) or Expanded Family and Medical Leave, an Employee must additionally provide:

(1) the name of the Son or Daughter being cared for;

(2) the name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and

(3) a representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave.

(f) The Employer may also request an Employee to provide such additional material as needed for the Employer to support a request for tax credits pursuant to the FFCRA. The Employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. For more information, please consult https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided
by-small-and-midsize-businesses-faqs.

  • Sec. 826.130 guarantees the worker a “right to be restored to the same or an equivalent position” if the job still exists, in other words, the section also clarifies that the “Employee is not protected from employment actions, such as layoffs, that would have affected the Employee regardless of whether he or she took leave. In order to deny restoration to employment, an Employer must be able to show that an Employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.” The section also recognizes that very small employers of fewer than 25 employees (see above regarding counting) may be protected by an exemption from the restoration obligation subject to four conditions set forth in sec. 826.130(b)(3).
  •  Sec. 826.140 details recordkeeping requirements for four years.

DOL updates its Q&A re new coronavirus sick-/FMLA- leave law

The DOL has updated its Q&A regarding the new coronavirus sick-/FMLA- leaves. Added answers include:

  • Employees who are already or who become subject to layoffs/furloughs will generally not be entitled to either of these new leaves.
  • Employees who are assigned to telework are only entitled to these new leaves if they are unable to telework as a result of one of the qualifying reasons for these sick-/FMLA-leaves.
  • Employees, including teleworking employees, are entitled to intermittently take both of these new sick-/FMLA-leaves (assuming they meet one of the qualifying reasons).

Employers of fewer than 500 should review the updated Q&A immediately in its entirety.

BREAKING NEWS: DOL has issued the poster REQUIRED to be “posted” re coronavirus sick-/FMLA- leave

Employers who are subject to the new FFCRA (Families First Coronavirus Response Act) sick-/FMLA- leave are required to post a poster by the FFCRA’s effective date, April 1, 2020. The EEOC has just issued the required poster along with a Q&A that answers common questions employers will have regarding the same, including explaining that, where a workplace has suffered reductions due to coronavirus it may be necessary to issue the poster by email or so-called snail mail — but not to already furloughed or laid off workers nor in languages other than English. The Q&A provides, as follows:

 

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

  1. What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.
  2. As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees 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.Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

    In general, 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.

  3. If I am a private sector employer and have 500 or more employees, do the Acts apply to me?No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.[1]
  4. If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.
  5. How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
  6. When calculating pay due to employees, must overtime hours be included?Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

    If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.

    Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7.

    Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

  7. As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?It depends on your normal schedule as well as why you are taking leave.If you are taking paid sick leave because you are unable to work or telework due to a need for leave because you (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, you will receive for each applicable hour the greater of:
    • your regular rate of pay,
    • the federal minimum wage in effect under the FLSA, or
    • the applicable State or local minimum wage.

    In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

    If you are taking paid sick leave because you are: (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; (2) caring for your 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, you are entitled to compensation at 2/3 of the greater of the amounts above.

    Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two week period.

    If you are taking expanded family and medical leave, you may take paid sick leave for the first ten days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following ten weeks, you will be paid for your leave at an amount no less than 2/3 of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

    To calculate the number of hours for which you are entitled to paid leave, please see the answers to Questions 5-6 that are provided in this guidance.

  8. What is my regular rate of pay for purposes of the FFCRA?For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.[2] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.If you are paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.

    You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

  9. May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.
  10. If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact?You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
  11. Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.
  12. Is all leave under the FMLA now paid leave?No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
  13.  Are the paid sick leave and expanded family and medical leave requirements retroactive?No.
  14. How do I know whether I have “been employed for at least 30 calendar days by the employer” for purposes of expanded family and medical leave?You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020.If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period.
  15. What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits.  If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.
  16. What documents do I need to give my employer to get paid sick leave or expanded family and medical leave?You must provide to your employer documentation in support of your paid sick leave as specified in applicable IRS forms, instructions, and information.Your employer may also require you to provide additional in support of your expanded family and medical leave taken to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this may include a notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider. Your employer must retain this notice or documentation in support of expanded family and medical leave, including while you may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason.

    Please also note that all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA if required by your employer.

  17. When am I able to telework under the FFCRA?You may telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.
  18. What does it mean to be unable to work, including telework for COVID-19 related reasons?You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.
  19. If I am or become unable to telework, am I entitled to paid sick leave or expanded family and medical leave?If your employer permits teleworking—for example, allows you to perform certain tasks or work a certain number of hours from home or at a location other than your normal workplace—and you are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave.Similarly, if you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.
  20. May I take my paid sick leave or expanded family and medical leave intermittently while teleworking?Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, you and your employer may agree that you may take paid sick leave intermittently while teleworking. Similarly, if you are prevented from teleworking your normal schedule of hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you and your employer may agree that you can take expanded family medical leave intermittently while teleworking.You may take intermittent leave in any increment, provided that you and your employer agree. For example, if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

    The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.

  21. May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:
    • You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
    • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
    • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    • You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
    • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

    Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

    If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

    In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.

    The Department encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the Department is supportive of such voluntary arrangements.

  22. May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?Yes, but only with your employer’s permission. Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.The Department encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.
  23. If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.
  24. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  25. If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  26. If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  27. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.
  28. If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work? No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced (see Question 5).
  29. May I collect unemployment insurance benefits for time in which I receive pay for paid sick leave and/or expanded family and medical leave?No. If your employer provides you paid sick leave or expanded family and medical leave, you are not eligible for unemployment insurance. However, each State has its own unique set of rules; and DOL recently clarified additional flexibility to the States (UIPL 20-10) to extend partial unemployment benefits to workers whose hours or pay have been reduced. Therefore, individuals should contact their State workforce agency or State unemployment insurance office for specific questions about eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  30. If I elect to take paid sick leave or expanded family and medical leave, must my employer continue my health coverage? If I remain on leave beyond the maximum period of expanded family and medical leave, do I have a right to keep my health coverage?If your employer provides group health coverage that you’ve elected, you are entitled to continued group health coverage during your expanded family and medical leave on the same terms as if you continued to work. If you are enrolled in family coverage, your employer must maintain coverage during your expanded family and medical leave. You generally must continue to make any normal contributions to the cost of your health coverage. See WHD Fact Sheet 28A: https://www.dol.gov/agencies/whd/fact-sheets/28a-fmla-employee-protections.If you do not return to work at the end of your expanded family and medical leave, check with your employer to determine whether you are eligible to keep your health coverage on the same terms (including contribution rates). If you are no longer eligible, you may be able to continue your coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA, which generally applies to employers with 20 or more employees, allows you and your family to continue the same group health coverage at group rates. Your share of that cost may be higher than what you were paying before but may be lower than what you would pay for private individual health insurance coverage. (If your employer has fewer than 20 employees, you may be eligible to continue your health insurance under State laws that are similar to COBRA. These laws are sometimes referred to as “mini COBRA” and vary from State to State.) Contact the Employee Benefits Security Administration at https://www.dol.gov/agencies/ebsa/workers-and-families/changing-jobs-and-job-loss to learn about health and retirement benefit protections for dislocated workers.

    If you elect to take paid sick leave, your employer must continue your health coverage. Under the Health Insurance Portability and Accountability Act (HIPAA), an employer cannot establish a rule for eligibility or set any individual’s premium or contribution rate based on whether an individual is actively at work (including whether an individual is continuously employed), unless absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work.

  31. As an employee, may I use my employer’s preexisting leave entitlements and my FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours?No. If you are eligible to take paid sick leave or expanded family and medical leave under the FFCRA, as well as paid leave that is already provided by your employer, unless your employer agrees you must choose one type of leave to take. You may not simultaneously take both, unless your employer agrees to allow you to supplement the amount you receive from paid sick leave or expanded family and medical leave under the FFCRA, up to your normal earnings, with preexisting leave. For example, if you are receiving 2/3 of your normal earnings from paid sick leave or expanded family and medical leave under the FFCRA and your employer permits, you may use your preexisting employer-provided paid leave to get the additional 1/3 of your normal earnings so that you receive your full normal earnings for each hour.
  32. If I am an employer, may I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?If your employee chooses to use existing leave you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including Federal employees. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or exceeds the limits set forth under Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.However, you are not required to permit an employee to use existing paid leave to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. Further, you may not claim, and will not receive tax credit, for such supplemental amounts.
  33. If I am an employer, may I require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?No. Under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. The employee would have to agree to use existing paid leave under your paid leave policy to supplement or adjust the paid leave under the FFCRA.
  34. If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them?You may pay your employees in excess of FFCRA requirements. But you cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits.
  35. I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Family and Medical Leave Expansion Act through contributions to a multiemployer fund, plan, or program?You may satisfy your obligations under the Emergency Family and Medical Leave Expansion Act by making contributions to a multiemployer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the amount of paid family and medical leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
  36. I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Paid Sick Leave Act through contributions to a multiemployer fund, plan, or program?You may satisfy your obligations under the Emergency Paid Sick Leave Act by making contributions to a multiemployer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the hours of paid sick leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
  37. Are contributions to a multiemployer fund, plan, or other program the only way an employer that is part of a multiemployer collective bargaining agreement may comply with the paid leave requirements of the FFCRA?No. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that, consistent with its bargaining obligations and collective bargaining agreement, an employer may satisfy its legal obligations under both Acts by making appropriate contributions to such a fund, plan, or other program based on the paid leave owed to each employee. However, the employer may satisfy its obligations under both Acts by other means, provided they are consistent with its bargaining obligations and collective bargaining agreement.

With that, the DOL issued two additional Q&A’s re how coronavirus relates to the FLSA (Fair Labor Standards Act) and the FMLA(Family and Medical Leave Act).

 

 

DOL issues preliminary Q&A re new coronavirus sick and FMLA leave rights

The DOL has issued a preliminary Q&A on the newly mandated coronavirus-related sick- and FMLA-leave rights. The Q&A answers some but not all of the questions previously raised to DOL. Highlights of the Q&A include the following:

  • The effective date of this new Act will now be April 1, 2020 (moved up from the initial tentative date of no later than April 2, 2020).
  • How employees should be counted for the purpose of determining if a company falls into the exemption for large companies (employing 500 or more), including how to count for related companies (including affiliates) and possible joint employer relationships.
  • How the new coronavirus sick leave hours should be counted for part-time workers.
  • How much sick leave should be paid for workers who would, otherwise, have worked overtime.
  • How employees who qualify for both the new coronavirus sick-leave and the new coronavirus paid FMLA-leave should be paid.
  • The DOL’s interpretation that paid leave provided prior to the new Act’s effective date (now, April 1, 2020) does not count towards these new requirements.
  • How to count the 30-day eligibility period for new hires re the new coronavirus FMLA-leave law.

The DOL advises that regulations will be forthcoming as may be additional guidance.

For brevity’s sake, the DOL’s analysis of these, and the other topics it addresses, are not restated here. Rather employers are encouraged to immediately review the DOL’s Q&A in full.

IRS begins clarifying how employers can recoup coronavirus-related leave expenditures

As previously posted, Congress enacted this week two new forms of coronavirus-related leave: sick leave and coronavirus-FMLA leave. Today, 3-20-2020, the IRS issued a memo beginning to explain how employers will be able to recoup expenses for the same and advising that further explanation will be forthcoming next week:

When employers pay their employees, they are required to withhold from their employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare taxes.  The employers then are required to deposit these federal taxes, along with their share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS.

Under guidance that will be released next week, eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS.

The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.

If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week. 

Questions arise for regulatory clarification re coronavirus leave

As noted, Congress enacted two new forms of coronavirus leave this week: sick and FMLA-type leave. Bloomberg BNA reports that the DOL held a townhall today 3-20-2020 to invite suggestions for regulatory clarification and that questions raised in that townhall included:

  • How the exemption for small employers (less than 50 workers) will be interpreted? How will the 50-worker threshold be counted? Will there be any other requirements or will all employers with fewer than 50 workers be exempted?
  • How the exemption for large employers (more than 50 workers) be interpreted? How will the 500 workers be counted?
  • How will existing paid and sick leave interface with these two new forms of leave?
  • Will amounts paid to furloughed workers as a result of the coronavirus events count towards these two new forms of leave?
  • How will the new coronavirus-FMLA leave interact with regular FMLA leave for individuals who experience both coronavirus-related and un-related medical conditions?
  • How will the Treasury Department clarify the rules for how and when employers may assert the tax reimbursement credit to offset payments for these two new forms of leave?

As previously posted, the DOL is expected to issue its regulations — without prior notice or opportunity to comment — no later than the Act’s effective date, and as early as next week.

BREAKING NEWS: Congress passes mandatory sick leave and paid FMLA leave re coronavirus

Late March 18, 2020, Congress passed then the President signed into law the Families First Coronavirus Response Act, HR 6201.

  • The Act will take effect “not later than 15 days” after its enactment March 18, 2020, in other words, absent further development, April 2, 2020. (UPDATE: The effective date has been set for April 1, 2020.) It will sunset December 31, 2020.
  • The Act requires two types of leave, both include paid leave components.
    • Both types of leave apply to employers with fewer than 500 employees.
    • Employers of fewer than 50 employees will theoretically be able to seek exemption from the leave requirements if they would “jeopardize the viability of the business as a going concern.” The Act does not explain further. Rather it delegates to the DOL authority to develop regulations and processes to flesh out this possible exemption.
    • Special rules may also permit exemption of “certain health care providers and emergency responders,” again without explanation in the Act, as to be fleshed out by DOL regulations.
  • First, the Act provides for up to 80 hours of sick leave, in the event (1) the employee is subjected to a federal, state or local quarantine/isolation order re coronavirus, (2) the employee has been advised by a healthcare provider to self-quarantine re coronavirus, (3) the employee’s own coronavirus experience, or the employee is (4) caring for an individual subject to a quarantine/isolation order, (5) caring for a child whose school or daycare is closed, or (6) similar conditions as specified by government officials.
    • Sick leave for reasons 1-3 (generally the employee’s own condition) is capped at $511 per day.
    • Sick leave for reasons 4-6 is capped at $200 per day.
    • This sick leave will be available to all employees. Unlike the FMLA leave below, it does not appear to require a 30-day period of employment for eligibility.
  • Second, the Act amends the FMLA to provide for 12 weeks of leave when an employee is unable to work (or telework) because the employee must care for a child under the age of 18 whose daycare, elementary or high school has been closed due to coronavirus.
    • The first 10 days are unpaid. Employees can opt (but not be required) to substitute other paid leave.
    • The remaining 10 weeks of FMLA is paid at 2/3rds of the employee’s regular pay up to $200 per day and $10,000 total aggregate.
    • This coronavirus-specific FMLA leave will be available to employees who have been employed for at least 30 days.
    • The Act modifies the FMLA’s job-restoration requirements (in ways arguably not yet fully clear and hopefully to be determined by DOL regulation), recognizing that following the coronavirus crisis many positions will no longer exist.
    • Please note the coverage (fewer than 500 employees) and eligibility (30-days employment) requirements. This will mean that many (many) more employers and employees will be covered by coronavirus-FMLA than would otherwise be covered by the FMLA in general.
  • The Act (again without sufficient detail to be fully clear) provides for 100% tax credits to permit employers to offset the costs of providing such leave (by offsets against Social Security taxes).
  • The DOL is required to publish a poster within 7 days, summarizing the Act.

UPDATE: The DOL has begun rulemaking to develop regulations, which it hopes to deliver no later than the Act’s effective date, if not sooner. The DOL will bypass the normal process of publishing proposed rules first by invoking governmental-agency emergency authority to publish immediately effective final rules and invite comment on the same thereafter for possible later revisions.

 

BREAKING NEWS: Colorado Department of Labor and Employment issues paid-sick leave rule regarding coronavirus testing

According to a verbally issued executive order by Colorado Governor Polis, the Colorado Department of Labor and Employment has issued a rule (the “Colorado HELP” rule, aka the Colorado Health Emergency Leave with Pay rule) requiring certain employers to provide up to 4 days of paid leave for employees awaiting a coronavirus test result. Rule 3 reads, as follows:

Rule 3. Paid Sick Leave for Certain Employees.
3.1 Any employer engaged in the field of leisure and hospitality, food services, child care, education at all levels (including related services, including but not limited to cafeterias and transportation to, from, and on campuses), home health care (working with elderly, disabled, ill, or otherwise high-risk individuals), operating a nursing home, or operating a community living facility shall provide up to four days of paid sick leave for an employee (A) with flu-like symptoms and (B) who is being tested for COVID-19. The paid sick leave ends if an employee receives a negative COVID-19 test result.

3.2 These rules do not require an employer to offer additional days of paid sick leave if it already offers all employees an amount of paid leave sufficient to comply with Rules 3.1. However, an employee who already exhausted his or her paid leave allotted by the employer, but then has flulike symptoms and is being tested for COVID-19, is entitled to the additional paid sick days provided by Rule 3.1.
3.3 During paid sick leave covered by these rules, pay shall be provided (A) at the employee’s regular rate of pay (the COMPS Order Rule 1.8 definition of “regular rate of pay” is incorporated into this rule), including all forms of wages and compensation (but increased to the applicable minimum wage for an employee paid below the minimum wage due to a tip credit), and (B) for the employer’s regularly worked hours. To the extent that the employee’s rate of pay or hours worked had varied before the absence for illness, pay shall be in the amount of the employee’s average daily pay for the preceding month.
3.4 To the extent feasible, employees and employers should comply with the procedures of the federal Family Medical Leave Act (“FMLA”) to pursue and provide paid sick leave under these rules, except that (A) no employer may terminate an employee for inability to provide documentation during an illness covered by these rules, and (B) FMLA provisions do not narrow the rights and responsibilities provided by these rules.

Governor Polis has stated an intent to continue to explore ways the state can respond, including expanding availability of unemployment benefits and possibly freeing up state-government money to assist with other wage losses.

The CDLE’s page on its Colorado HELP rule, including the CDLE’s FAQ list, is available here, which includes the following Q&As:

What does the rule do?

  • Temporarily requires employers in certain industries (listed below) to provide a small amount of paid sick leave to employees with flu-like symptoms who are being tested for coronavirus COVID-19.

How much paid sick leave must be provided?

  • The employer must provide up to four days of paid sick leave to employees with flu-like symptoms who are being tested for coronavirus COVID-19. If the employee receives a negative test result, the paid leave ends.

Is this a requirement on top of sick leave an employer already provides?

  • No. If an employer already provides the paid leave necessary to meet these rules’ requirements, then the employer does not need to provide additional leave. However, if an employer does not already provide enough paid sick leave to comply with these rules, it will have to provide additional paid sick leave to meet the rules’ requirements. And if an employee already exhausted any paid leave allotted by the employer, but then has flu-like symptoms and is being tested for COVID-19, he or she is entitled to the additional paid sick days these rules provide.

Which employees and employers are covered by these sick leave rules?

  • Employers and employees in one of the following industries or jobs:
    • Leisure and Hospitality
    • Food Services
    • Child care
    • Education, including transportation, food service, and related work at educational establishments
    • Home health, if working with elderly, disabled, ill, or otherwise high-risk individuals
    • Nursing homes
    • Community living facilities
  • Workers are covered regardless of pay rate or method (hourly, weekly, piece rate, etc.); the daily pay during leave is either their established daily rate or, if their pay fluctuates, their average daily pay for the past month.

How long will the rule stay in effect?

  • The rules take effect March 11, 2020, for 30 days, or longer if the state of emergency declared by the Governor continues.

Why are these rules being created?

  • With the continuing spread of coronavirus COVID-19, coming to work while ill poses a serious threat to the health and safety of co-workers, others at the business, and the public generally. These rules will temporarily entitle certain employees to paid sick days in order to limit the spread of this disease.

Will additional funds be available for workers who need to be out of work longer than four days?

  • The current emergency rules only speak to paid leave for the four-day period required for testing, because that is what CDLE could do immediately. The Governor has asked CDLE to identify other potential supports and wage replacement, such as access to unemployment insurance. These options are under review to determine rulemaking authority, eligibility, etc.