Tag Archive for: PTO

CDLE publishes searchable index of its citations and appeals

HR professionals and employment lawyers will have noticed that the CDLE has become increasingly active in Colorado employment law issues in recent years. Are you curious what the agency is actually doing as it enforces this crop of Colorado laws? The CDLE is helpfully publishing a searchable index of its citations and appeals.

Available keyword searches include the following:

Advances Business Closure Division Authority Final Wages Pay Periods Retaliation – PHEW Tip Posting Requirement
Agreed Wage/Rate Calculations of Wages/Hours Division Notices/Filings Fine Pay Statements Retaliation – Wages Tip Sharing / Notice Requirement
Alleged Waiver Commissions Draws Handbooks/Manuals Penalties Retaliation Only Tips/Gratuities
Apparent Authority Compensable Time Employee/Contractor Joint Employment Physical Disability Sub-minimum Wage Settlement Vacation Pay / PTO
Bankruptcy Compliance Order Employee/Volunteer Local Minimum Wage Records of Time Worked Sick Pay – 2020 Willful
Benefits COMPS EAP Duties Test Employer Coverage Meal Break/Meal Periods Reduction in Pay Sick Pay – After 2020
Bonuses COMPS Rest Periods Deductions Minimum Wage Reprisal Staffing/Temp Agencies
Bounced Check COMPS Tipped MW 80/20 application Employer Individual Liability Notice of Rights & Posters Retaliation – COMPS Statutory Interpretation
Breaks/Rest Periods Contract Equal Pay – Transparency Overtime Retaliation – HFWA Termination
Burden of Proof Direct Investigation Exemptions Paid Time Off (PTO) Retaliation – Other Third-Party Payments

An example of the kind of information that might be of interest to employers is this recent Notice of Fine For Non-Compliance With Division Orders And Order To Respond issued to one employer apparently based on the CDLE’s own review of the employer’s public job posting, in light of recent Colorado job-posting transparency requirements. There the CDLE discusses its view of specific posting requirements and the proper level of related fines.

The CDLE deserves credit for making this index available and searchable. Employers, individuals and their counsel will benefit from being able to search and find how the CDLE is applying the many laws it now has jurisdiction to enforce.

CDLE publishes INFO 14 with guidance regarding Colorado’s requirement for payout of vacation upon separation

The CDLE has published INFO 14 explaining Colorado’s legal requirements for payout of vacation upon separation from employment. The INFO includes a number of examples illustrating various scenarios.

Colorado Supreme Court holds vacation is a wage due in final paycheck

As noted previously, litigation over vacation payouts has been on-going at the trial court level then the appellate courts, and now finally the Colorado Supreme Court. The issue has been whether, despite various statutory changes to Colorado’s wage laws, vacation is a “wage” that must be paid out in the employee’s final paycheck. More specifically the issue has been whether employers can lawfully rely on a policy that puts a condition on the payout of wages.

In the case before the courts, the employer wrote its policy to say that vacation would not be paid out at termination unless the employee (a) resigned (b) after providing a 2-week notice of resignation.  The trial court and Court of Appeals each held that the policy controlled. Colorado law does not require that employees be given any vacation, and employers are free to determine at what rate workers earn vacation.

However, the Colorado Supreme Court reversed. The Colorado Supreme Court held, first, that, once a worker had earned the vacation, in a known amount, it was both “earned” and “determinable,” which is all the statute in Colorado requires for it to be owed. Second, the Court pointed to another provision in the statute that prohibits waivers and forfeitures of vacation, once it has been earned, and held that the policy’s conditions were, therefore, unenforceable. In short, the Court held that the employee had “earned” the vacation, and it was “determinable;” therefore, it was owed, and any policy language attempting to forfeit it was unenforceable.

Particularly aggressive employers may point out that, in this particular case, the vacation policy said that vacation was “earned” once the necessary hours were worked to accrue it. They may argue that such language limits the reach of this decision, and that, if the policy had been written to say no vacation was “earned” until the necessary accrual-hours were worked and 2-week notice of resignation were given — such employers might argue — the policy would have been effective. Employers are advised to consult with experienced legal counsel before attempting to rely on such an aggressive reading of the case.

Source: Nieto v. Clark’s Market, Inc., 2021 CO 48 (6/14/2021).

CDLE issues yet more rules, now confirming the need to provide a fresh 80 hours of pandemic leave starting January 1, 2021

The CDLE has issued a new batch of rules and INFO sheets #6B and #6C confirming the need, in Colorado, to issue a fresh 80 hours of pandemic leave. In other words, an employee who has used, for example, 70 of their current 80 hours, will have their remaining 10 hours zeroed out at the close of 12/31/2020, then at the beginning of 1/1/2021, they will need to have their available paid leave requirements augmented to permit a fresh 80 hours; an employee who has used 10 of their current 80 hours, will likewise have their remaining 70 hours zeroed out and be given a fresh 80 hours as well. INFO 6C explains the basis for the requirement to provide this fresh 80 hours, and INFO 6B explains the basic requirements of Colorado 48-hour and 80-hour paid leave requirements under HFWA.

Employers should consider providing all Colorado employees with a copy of the CDLE’s poster and an explanatory memo. As explained in a previous post, employers should carefully craft the language of their memo to meet the other requirements posed in the CDLE’s HFWA rules.

Colorado Court of Appeals rules for employer on vacation issue

In a previous post, it was noted that a case has been pending before the Colorado Court of Appeals involving an employer’s refusal to pay vacation at separation, despite the provisions of CRS 8-4-101 and a new regulation promulgated by the CDLE thereunder. The Court of Appeals has now ruled in the case, Blount v. Colorado Department of Labor and Employment, that the employer was within its rights to refuse to pay out the vacation because it had clearly stated in its vacation policy that “Unused Vacation Allowances are not paid to Team Member at any time, including upon termination of employment.” The unpublished decision was not selected for official publication. It is also noted, as explained in this blog’s previous post, that this ruling is in apparent conflict and arguably contrary to the CDLE’s recent regulations and that the issue is currently pending before the Colorado Supreme Court in a different lawsuit.

Governor Polis signs Colorado sick leave laws into effect, requiring IMMEDIATE action by employers

Governor Polis has signed two laws into effect.

The Colorado Department of Labor and Employment (CDLE) has issued summaries of each law (which it calls INFOs).

Additionally, the CDLE has released a poster (Spanish) for immediate posting by covered employers (see below).

Immediate Posting and Notification Obligations

Covered employers are required to immediately:

  • Post the required poster (Spanish).
    • Postings must be made in English and any language that at least 5% of the workforce speaks.
  • Notify employees of their rights under PHEW and HFWA. This notice may be accomplished by distributing in writing or by e-mail the required poster (Spanish).
    • If a company wishes, it may also meet this requirement by distributing copies of INFO 5, 6A and 6B, instead of (or in addition to) the poster.
  • Comply with the other requirements of PHEW and HFWA that took immediate effect (see below).

PHEW – Whistleblower and other protections

As explained in the CDLE’s INFO 5, PHEW applies to Colorado employers irrespective of size and also covers companies (called “principals” in the new law) who contract with five or more independent contractors in a year; it protects their employees and contractors

PHEW provides whistleblower protections for employees who lodge complaints regarding a public health emergency, i.e., who raise “a reasonable concern about workplace violations of government health or safety rules, or about an otherwise significant workplace threat to health or safety, related to a public health emergency.” Additionally it protects those who oppose such unsafe practices or participate in their investigation, determination or remedying. In INFO 5, the CDLE includes these observations regarding this aspect of PHEW:

Reasonableness​: Workers are protected even if they are incorrect about a claimed violation, if their belief was “reasonable” and in “good faith.” Workers are​ not protected for communications (A) that are “knowingly false,” or are made “​with reckless disregard for the truth or falsity of the information,” or (B) that “​share individual health information that is otherwise prohibited from disclosure” by state or federal law. (C.R.S. 8-14.4-102(5)-(6).)

Principal is not required to ​agree ​with, or ​act on, incorrect concerns​: If a worker’s concern is reasonable but incorrect, the principal is not required to agree with it, or to take any action the worker requests. It just cannot fire or otherwise act against the worker for raising that concern (for example, with a demotion, discipline, a cut in pay or hours, or an undesired transfer or shift change).

PHEW requires companies to allow individuals to wear their own desired pandemic-related safety gear, so long as it is more (not less) protective than that required by law and by the company.

A principal must allow, and cannot act against a worker for, “voluntarily wearing at the worker’s workplace the worker’s own personal protective equipment, such as a mask, faceguard, or gloves” (“PPE”) — with these limits and conditions on the PPE that the worker has a right to wear (C.R.S. 8-14.4-102(3)):

  • only PPE that “provides ​a higher level of protection than the equipment provided by the principal”;
  • only PPE that “is recommended by a federal, state, or local public health agency with jurisdiction over the worker’s workplace”; and
  • only PPE that “does not render the worker incapable of performing the worker’s job or prevent a worker from fulfilling the duties of the worker’s position.”

PHEW prohibits non-disclosure agreements that would otherwise impair an employee’s rights under PHEW. 

HFWA – Sick leave and other requirements

As explained in the CDLE’s INFO 5 and 6, HFWA takes effect in three stages.

Stage 1: HFWA’s immediate requirements

Effective immediately, all employers, irrespective of size, must

  • Offer leave that mirrors the federal FFCRA (Cares Act) leave currently required for coronavirus purposes.
    • While this new state law mirrors the requirements of the federal FFCRA, it expands the FFCRA in at least one major respect. This new Colorado law now requires such leave for employers of all sizes; whereas, the FFCRA does not apply to companies with more than 500 workers and has possible exemptions for employers with fewer than 15 workers.
    • Additionally HFWA offers no tax credits for the payment of this new leave. Whereas the FFCRA allows for the costs of such leave to be passed through effectively to the federal government in the form of tax credits, this means large employers who are not subject to the FFCRA apparently will have to absorb the costs of this new leave.  
    • The process for requesting and granting HFWA leave tracks the FFCRA’s in many respects, including the types of documentation involved.
      • However, the HFWA explicitly states that an employee’s failure to provide documentation or advance notice is generally not grounds for denying the leave.  “Documentation is not required to take paid sick leave, but can be required as soon as the employee reasonably can provide it” (quoting the CDLE’s INFO 6A).

Notice can be oral, and must provide only enough information for an employer to determine whether the leave is for an HWFA purpose. An employer may not require notice to include information or documentation beyond what is allowed in the documentation above. An employee’s representative (​e.g., spouse, adult family member, or other responsible party) may provide the notice if the employee cannot do so personally. If an employee fails to give notice, the employer must notify the employee of the failure and provide an opportunity to provide notice before denying the requested leave.

    • Existing leave policies can comply if they otherwise meet or exceed the HFWA’s requirements.
  • Post the required poster (Spanish).
  • Notify workers of their HFWA rights (see above regarding doing so by distribution of the poster and/or INFO 5, 6A and 6B).

Workers have complaint and anti-retaliation protections; however, the anti-retaliation provisions do not protect employee abuse of the HFWA as explained by the CDLE in INFO 6B:

HFWA disallows acting against employees for ​incorrect complaints or information, as long as the employee’s belief was reasonable and in good faith. (C.R.S. 8-13.3-407(3).) Employers ​can impose consequences (firing or otherwise) for misusing paid leave, dishonesty, or other leave-related misconduct. (C.R.S. 8-13.3-408.)

  • Example: ​An employer denies an employee paid leave for a “life coach” appointment. The employee files a complaint at the Division, and tells coworkers the employer is wrongly denying paid leave. The Division rules that this appointment was ​not HFWA-covered. That means the employer did nothing wrong by denying leave. But without evidence the employee’s belief that HFWA covered the appointment was unreasonable or in bad faith, the employer ​can’t ​ take action against the employee for requesting leave, filing a complaint, or telling co-workers she believed the employer violated HFWA.
  • Example:​ An ​employer​ grants​ an ​employee ​request ​for​ paid​ leave​ for a ​blood ​test ​and​ physical​ exam.​ The employer then learns the employee went bowling and never really had that appointment, so it (A) denies the request for paid leave and (B) fires the employee for dishonest misuse of leave. The employee files a complaint claiming (A) denial of paid leave and (B) retaliation against using HFWA rights. The employer did nothing wrong: (A) leave was not for an HFWA purpose, and (B) the firing was not retaliation because by taking leave with no HFWA purpose, the employee did not act reasonably or in good faith.

Stage 2: HFWA’s 1/1/2021 requirements

Effective 1/1/2021, for companies with more than 15 employees:

  • The HFWA’s (and FFCRA’s) pandemic sick leave requirements will have ended. Instead, an employer will be required to offer at least 48 hours (for hourly and 6 days for salaried workers) of sick leave for employees when
  1. having a mental or physical ​illness, injury, or health condition that prevents them from working;
  2. needing to get ​preventive medical care​, or to get a ​medical ​diagnosis, care, or treatment​, of any mental or physical illness, injury, or health condition;
  3. needing to ​care for a family member ​who has a mental or physical illness, injury, or health condition, or who needs the sort of care listed in category (2);
  4. the employee or the employee’s family member having been a victim of ​domestic abuse, sexual assault, or criminal harassment​, and needing leave for related medical attention, mental health care or other counseling, victim services (including legal services), or relocation; or
  5. due to a ​public health emergency​, a public official having ​closed ​either (A) the employee’s ​place of business​, or (B) the ​school or place of care ​of the employee’s child, requiring the employee needing to be absent from work to care for the child.
  • That leave will have to accrue at least at the rate of 1 hour per every 30 hours worked. Leave may be front loaded.
  • That leave may be capped at 48 hours per year.
  • That leave must be allowed to roll-over year-to-year (though again subject to a cap if the employer so elects).
  • That leave must be allowed for hourly and salaried employees, whether full-time or part-time, with accruals starting on the date of hire.
  • Note: Existing leave policies can comply if they otherwise meet or exceed the HFWA’s requirements.
    • With regard to PTO policies in particular, the 48 hour/6 day requirement is met so long as the full compliment of PTO exceeds such amounts. ‘Compliance can be through a broader paid leave policy, such as allowing “paid time off” for any purpose, health-related or not — as long as the policies (A) provide as much time off as HFWA requires, (B) for all conditions and situations that HFWA covers.”‘
    • Still relying on existing policies may be difficult for many companies as current sick leave policies often (a) provide for leave only when employees are sick (not for the other reasons set forth above), (b) provide only 5 not 6 sick days, (c) apply to employees after a 90-day probationary period and (d) do not cover part-time employees. These are just some examples of the kinds of current sick leave policies that will need to be revised to come up to HFWA’s requirements.
      • Additionally, policies should be revised to impose the permitted 48 hour/6 day cap; otherwise, as required, the sick leave will carry over and continue to accrue year after year.
  • Provide for at least 80 hours of sick leave in the event of another public health emergency. This leave will not be required in addition to the 48 hours/6 days required above; rather, leave requirements may be supplemented to cover the 80-hours of pandemic leave in the event of another public health emergency.
  • And as with the initial pandemic-leave requirements (see above), the HFWA explicitly states that an employee’s failure to provide documentation or advance notice is generally not grounds for denying the leave.
    • Additionally documentation may only be required when the absence is of 4 or more days, per CRS 8-13.3-404(6).

Stage 3: HFWA’s 1/1/2022 requirements

Effective 1/1/2022, the HFWA’s requirements will attach to employers of 15 or fewer.

HFWA and part-time employees

As noted, HFWA leave is required for part-time employees.

In footnote 2 of INFO 6A, the CDLE explains that Stage 1 HFWA leave (FFCRA-type pandemic leave) is to be provided to part-time employees, as follows:

​Leave for a part-time employee with a regular schedule is at the number of hours normally worked in a two-week period. If an employee’s hours vary, the employer must use their average hours over the six months before the leave. If the varied-schedule part-timer was employed less than six months, the employer must use the number of hours the employee agreed to work when hired, or if no such agreement exists, the average daily hours the employee was scheduled to work over their entire employment. (These are methods the U.S. Department of Labor adopted, 29 C.F.R. 826.21(b), so employers can use them for federal and Colorado law.)

And footnote 5 of INFO 6B explains the same for the availability of Stages 2 and 3 HFWA leave (general sick leave) for part-time employees, as follows:

​Leave for a part-time employee with a regular schedule is at the number of hours normally worked in a two-week period. If an employee’s hours vary, employers must use the employee’s average hours over the six months before leave started. If the varied-schedule part-timer has been employed less than six months, the employer must use the number of hours the employee agreed when hired, or if there is no such agreement, the average daily hours the employee was scheduled to work over their entire employment. Any of these calculations include hours the employee took leave, in addition to hours worked. (These are the methods the U.S. Department of Labor adopted, so employers can use the same method for federal and Colorado law.)

HFWA and CBAs

As explained in the CDLE’s INFO 6B, the HFWA allows for collectively bargained leave instead so long as it is “equivalent or more” than the HFWA requires:

Example: ​ A CBA can depart from the HFWA requirement that leave must be in hourly increments, but cannot eliminate HFWA rights to take leave without interference (or, relatedly, to file a complaint if HFWA is violated). 

HFWA and business closures

When Stage 2/3 HFWA leave kicks in, it will not be required for periods when an “entire business” is “completely closed.”

No paid leave required if an entire business is completely closed​. ​Unless a workplace is closed due to a temporary government quarantine/isolation order, no paid leave applies ​if an entire business is completely closed ​(whether temporarily or permanently) – because then, workers aren’t on “leave,” they’re on furlough or layoff (which makes unemployment insurance, not paid leave, the possible remedy).

Defining a public health emergency

Both PHEW and HFWA discuss the phrase “public health emergency” as periods recognized as such by ‘either (A) “a public health order issued by a state or local public health agency” or (B) “a disaster emergency declared by the governor based on a public health concern”’ (quoting the CDLE’s INFO 5). The CDLE notes in footnote 3 of INFO 6B that, starting at least 1/1/2021, a public health emergency need not be related to coronavirus.

Counting years

In footnote 4 of its INFO 6B, the CDLE states that, unless an employer specifies otherwise, years will be counted, at least for HFWA purposes, on the basis of a calendar year. 

If an employer doesn’t say otherwise, the “year” when paid leave accumulates is a ​calendar​ year, because HFWA’s broad leave requirements all start with calendar years: January 1, 2021, for most employers; January 1, 2022, for small employers. But an employer ​can ​ choose a different annual cycle if (A) it tells employees in writing in advance, and (B) switching to a different cycle doesn’t diminish employee HFWA rights. 

Successor liability

The HFWA imposes successor liability on a buyer who “acquires all of an organization, a trade, or a business or substantially all of the assets of one or more employers,” quoting CRS 8-13.3-402(12). See also CRS 8-13.3-403(8).

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 enforcement guidance urging staff to recognize a “temporary non-enforcement period” for “reasonable” and “good faith” compliance

The DOL issued Field Assistance Bulletin no. 2020-1 urging its staff to recognize a “temporary non-enforcement period” for employers who are in “reasonable” and “good faith” compliance. To qualify for the benefit of this “non-enforcement period,” the employer must establish all of the following:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.  As explained in a Joint Statement by the Department, the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020, [2]  this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages.[3]

  2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”).

  3. The Department receives a written commitment from the employer to comply with the Act in the future.

In other words, an employer who has taken no steps to try to come into compliance with the FFCRA (Families First Coronavirus Response Act) will likely not qualify for the benefits of this “temporary non-enforcement period,” and an employer that has at least tried may qualify for some mitigation but will nonetheless be required to come into compliance, though it may have some time to remedy the violation “as soon as practicable” and may have the benefit of not having the DOL taking further enforcement actions against it in the meantime.

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.

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.

 

Three issues in Colorado regarding vacation pay

Colorado law, CRS 8-4-101 defines vacation to be a part of “wages” when “earned in accordance with the terms of any agreement. If an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee.” As such, an employee cannot agree to waive vacation, or any other “wages,” once “earned, pursuant to CRS 8-4-121, and CRS 8-4-109 requires that such vacation, along with all other “wages,” to be paid out in final paychecks.

Despite what seems relatively clear statutory language on first blush, three issues persist. Colorado employers have received some fleshout on at least two.

1. Can an employer impose conditions on the payout of vacation in a final paycheck? The Colorado Court of Appeals says, yes.

A recent Colorado Court of Appeals case suggests the law may not be that simple. In  Nieto v. Clark’s Mkt., Inc. the employer added a twist in its handbook. There, a policy said that an employee “forfeits all earned vacation and pay benefits” if they fail to provide 2-week notice before quitting. The employee cited the foregoing statutes, arguing the vacation could not be waived and had to be paid out in the final paycheck.

The Court of Appeals held for the company. The Court of Appeals looked to the “terms of any agreement,” as required by the statute, in other words, to the language of the vacation policy and held that 2-week notice was a condition of earning the vacation.

Ms. Nieto’s right to compensation for accrued but unused vacation pay depends on the parties’ employment agreement. And that agreement unequivocally says that the vacation pay she seeks wasn’t vested given the circumstances under which she left the Market’s employ.

Is Nieto good law in Colorado, can employers rely comfortably on it? Many would argue that the Colorado Court of Appeals simply got it wrong. However, the deadline for appeal has now passed, so it is certainly the law as between Ms. Nieto and her former employer Clark’s Market, Inc. It is noted too that the decision was selected for official publication, so, unless the Court of Appeals or the Colorado Supreme Court revisit the issue in a future case, it is binding on trial courts. Therefore employers could arguably rely on it for now, so long as they are willing to risk protracted litigation and future appeals.

2. Can an employer apply a use-it-or-lose-it rule to vacation at the end of every year? The Colorado Division of Labor and Employment says, no, but the issue is pending in the Colorado Court of Appeals.

Pending before the Colorado Court of Appeals is Blount, Inc. v. CDLE, in which the Colorado Division of Labor and Employment is asking the Court of Appeals to rule against an employer’s purported use-it-or-lose-it policy. In an apparent effort to end-run the Court’s decision, the CDLE issued on the same day as it filed a brief in the appeal, a new rule (7 CCR 1103-7 rule 2.15) — which it then proceed to rely upon in its brief — stating that employers may not have use-it-or-lose-it policies. How will the Court of Appeals rule? How will the Court of Appeals view the CDLE’s apparent claim-jumping regulation? Will the Court of Appeals take Blount as an opportunity to re-consider or limit Nieto? Stay tuned.

3. Do these same rules apply to PTO or just vacation? The Division of Labor and Employment says, no, these restrictions do not apply to PTO.

As of this summer, callers to the Colorado Division of Labor and Employment will be told it takes the position that these “vacation” rules do not apply to PTO. CRS 8-4-101 speaks only to the inclusion of “vacation” in “wages,” not PTO; therefore, the Division will not currently pursue an administrative wage claim for PTO.

Notwithstanding, employers should realize that some plaintiff attorneys will take such claims to court, but they do so under a contract law theory, not under Colorado’s wage statutes, and as a contract claim, such claims do not carry attorney fees or penalties.