This summary provides an overview of the impact of the DOL’s regulations on how much paid leave is available under the FFCRA, and how it must be paid.
Emergency Paid Sick Leave (ESL)
- Amount Available: Total of 80 hours for: (1) employees scheduled to work at least 40 hours per workweek (Full-Time); and (2) employees who do not work a normal schedule but average at least 40 hours over the six months prior to their request for leave (or full period of employment if less than six months).
Part-time employees (employees who do not work or average at least 40 hours per workweek) are entitled to the number of hours the employee would normally work over the course of two workweeks. However, if they do not have a normal work schedule, the employer must look at the average of calendar days:
- If the employee has worked more than six months: Employer must average the number of hours worked (including hours for which employee received paid leave) each calendar day over the past six months ending on the first date the employee takes paid sick leave, then multiply that number by 14.
- If the employee has worked fewer than six months: The number of hours the employee and employer agreed the employee would work, on average, each calendar day multiplied by 14; OR average number of hours worked (including hours for which employee received paid leave) each calendar day over the full period of employment, multiplied by 14.
- For qualifying reasons (1) through (3): An employer must pay the greater of the employee’s average regular rate of pay (defined below) which must be calculated as discussed below, or the applicable minimum wage, up to a maximum of $511 per day and $5110 total.
- For qualifying reasons (4) through (6): Two-thirds of the amount described above, with a maximum of $200 per day and $2000 total. Leave for these reasons may be calculated in full-day or hourly increments. If this pay is calculated in hourly increments, the employer must pay the employee two-thirds of the eligible employee’s average regular rate for each hour the employee takes leave.
Emergency Paid Family and Medical Leave (EFMLA)
- Amount Available: A total of up to 12 workweeks, decreased by any FMLA time already taken within the employer’s FMLA year.
- First 2 weeks unpaid unless run concurrently with paid sick leave or employee uses other paid leave benefits under the employer’s policies.
- After two weeks, an employee is entitled to two-thirds of the employee’s average regular rate (defined below) multiplied by the employee’s scheduled number of hours for each day of leave taken. However, this benefit is only paid up to a maximum of $200 per day for up to 10 weeks after the initial two-week period of unpaid expanded family and medical leave. There is also a $10,000 total for this form of paid leave.
- Scheduled Number of Hours: This is straight-forward for employees who have a normal work schedule, as an employer just looks to what the employee would have been scheduled that day.
For an employee whose work schedule varies such that the employer cannot determine the number of hours the employee would have worked on a day on which leave is taken, the employer must look at averages. Note that these averages are different than the ones used for paid sick leave above. For expanded family and medical leave:
- If the employee has worked more than six months: Employer must average the number of hours the employee was scheduled to work (including hours for which the employee took any leave) on each workday over the six month period ending on the date on which the employee first takes expanded family and medical leave.
- If the employee has worked fewer than six months: The number of hours the employee and employer agreed the employee the employee would work each workday; OR average number of hours per workday that the employee was scheduled to work over the entire period of employment (including hours for which the employee took leave).
- This leave may be calculated in full-day or hourly increments. If this pay is calculated in hourly increments, the employer must pay the employee two-thirds of the eligible employee’s average regular rate for each hour the employee takes leave.
- The employee can choose or the employer can require an employee to use paid leave available under the employer’s policies to make up the difference between the two-thirds pay available under the FFCRA and the employee’s normal pay. Tax credits only apply to the two-thirds pay in this context.
Calculating the Regular Rate under the FFCRA
The Regular Rate under the FFCRA must include all forms of compensation that would typically be included in the regular rate under the FLSA, including nondiscretionary bonuses, shift differentials, etc. However, for FFCRA purposes, the employer must look at the regular rate earned over a period of six months ending on the date on which the employee first takes paid sick leave or extended family and medical leave and come to an average of the weekly regular rates weighted by the number of hours worked for each workweek. If the employee has not been employed for six months, then the employer should take the average for all work weeks for the employee’s full term of employment.
An employer can compute the Regular Rate for each employee by adding all compensation that is part of the regular rate over the applicable period (the lesser of six months or their period of employment) and dividing that sum by all hours actually worked in the same period.
FFCRA Regulations Overview
- Six Qualifying Events for Emergency Paid Sick Leave
- FFCRA Employee Eligibility, Including the “Healthcare Provider” Exemption
- Which Employers the FFCRA Applies to, and How Small Businesses Obtain an Exemption
- FFCRA Employer Notice Requirements
- FFCRA Employee Notice of Need for Leave Requirements
- Continued Healthcare Coverage and the Intersection with Other Laws
- FFCRA Return to Work Issues, Employee Record-Keeping Obligations and Prohibited Acts
- Intermittent ESL and EFMLA Leave and the Interplay Between EFMLA/ESL and the FMLA
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