DOL Issues FFCRA FAQs 80-93

On April 20 and May 7, 2020, the U.S. Department of Labor (DOL) issued additional “Frequently Asked Questions” (numbers 80-88 and 89-93, respectively) related to the Families First Coronavirus Response Act (FFCRA) following its April 1, 2020 effective date. We previously have discussed prior DOL guidance here: U.S. Department of Labor Publishes Guidance for Paid Sick Leave and Paid FMLA Compliance, Additional Guidance for FFCRA Paid Sick Leave and Paid FMLA Compliance, U.S. Department of Labor Issues More Guidance in Advance of FFCRA’s April 1, 2020 Effective Date, and Fourth Set of FFCRA FAQs from DOL.

The following are some important highlights from the latest guidance provided by the DOL:

Computing FFCRA Leave for Employees with Irregular Hours

Under the Emergency Paid Sick Leave Act:

Under the Emergency Paid Sick Leave Act, employers are required to provide an employee with paid sick leave equal to the average number of hours that employee is scheduled to work over a two-week period (up to 80 hours). If an employee works an irregular schedule and it is not possible to determine such a two-week average, the employer must estimate the number of hours based on the average number of hours the employee was scheduled to work per calendar day (not workday) over the six-month period ending on the first day of paid sick leave (if the employee has been employed for less than six months, then use the duration of employment). This average must include all scheduled hours, including both hours actually worked and hours for which the employee took any leave. For each hour of paid sick leave taken, employers must pay the employee an amount equal to at least that regular rate.

Under the Expanded Family and Medical Leave Act:

Under the Expanded Family and Medical Leave Act, employers are required to pay an employee for each day of expanded family and medical leave taken based on the number of hours the employee was normally scheduled to work on the day(s) for which leave is taken. If an employee works an irregular schedule and this is not possible to determine, the employer must determine the employee’s average workday hours, including any leave hours, based on the number of hours the employee was scheduled to work per workday (not calendar day) divided by the number of workdays over the six-month period ending on the first day of the employee’s paid expanded family and medical leave. This average must include all scheduled hours, including both hours actually worked and hours for which the employee took leave.

Computing Average Regular Rate for Fluctuating Rates of Pay

Employers are required to pay employees based on their average regular rate for each hour of paid sick leave or expanded family and medical leave taken. The average regular rate is computed over all full workweeks during the six-month period ending on the first day that such leave is taken.

If the employee was paid exclusively through a fixed hourly wage or salary, the average regular rate is the hourly wage or hourly-equivalent of their salary. However, if the employee was paid through a different compensation arrangement or received other types of payments (such as commissions or tips), the regular rate may fluctuate and the average may be computed using these steps:

1. Compute the employee’s non-excludable payment for each full workweek during the previous six-month period. Commissions and piece-rate pay counts towards this amount, but tips count only to the extent they are applied towards minimum wage obligations (i.e., a tip credit). Overtime premiums are not included. Unlike when computing average hours, payments received for taking leave should not be counted as part of the regular rate.
2. Compute the number of hours the employee actually worked for each full workweek during the six-month period. Do not count hours when the employee took leave.
3. Divide the sum of all non-excludable payment received over the six-month period (#1) by the sum of all countable hours worked in that same time period (#2). The result is the average regular rate.

Requiring employees to use existing leave under a company policy

Under the Emergency Paid Sick Leave Act:

Under the Emergency Paid Sick Leave Act, paid sick leave is in addition to any paid or unpaid leave provided by an employer, law, or collective bargaining agreement. An employer may not require employer-provided paid leave to run concurrently with paid sick leave under the Emergency Paid Sick Leave Act.

Under the Expanded Family and Medical Leave Act:

Under the Emergency Family and Medical Leave Expansion Act, however, an employer may require that any paid leave available under the employer’s policies run concurrently with paid expanded family and medical leave to allow an employee to care for a child because their school or place of care is closed (or child care provider is unavailable) due to a COVID-19 related reason. In this situation, the employer must pay the employee’s full pay during the leave until the employee has exhausted available paid leave under the employer’s plan (including vacation and/or personal leave, but typically not sick or medical leave).

However, the employer may only obtain tax credits for up to 2/3 of the employee’s regular rate of pay (subject to limits). The employer may supplement this amount to provide full compensation. If the employee exhausts paid leave under the employer’s plan but has available paid expanded medical and family leave, the employee will receive any remaining expanded medical and family leave payments.

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

Stay-at-home/shelter-in-place orders are the same as quarantine or isolation orders for FFCRA purposes

The FAQs clarify that for purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes shelter-in-place or stay-at-home orders issued by any government authority. However, for such an order to qualify for leave, being subject to the order must be the reason the employee is unable to perform work (or telework) and the employer has work to perform.

Domestic Service Workers

Whether someone (typically an individual or family) is required to pay sick leave or expanded FMLA leave to domestic service workers (who perform certain domestic tasks such as child care, cleaning, or landscaping) depends on whether they are an employer under the Fair Labor Standards Act. Being an employer for federal tax purposes is not relevant to this determination. Generally, a domestic service worker is an employee if they are economically dependent on you for work. An example of one such dependent worker is a full-time nanny who cares for your children at your direction and has no other clients. Such an employee must be provided paid sick leave or expanded family and medical leave. Otherwise, you are the customer of the domestic service worker. However, this is a fact-specific inquiry.

Permitted Documentation for Employee Taking Leave to Seek a Medical Diagnosis

An employer may require an employee to document efforts to obtain a diagnosis and take leave under the FFCRA. The required documentation must be minimal – such as requiring the employee to identify his or her symptoms and a date for a test or doctor’s appointment. However, the employee cannot be required to provide further documentation or certification in order to use paid sick leave for COVID-19 related symptoms.

Leave for School Summer Vacation

Paid sick leave or expanded FMLA leave are not available if the school or child care provider is closed for summer vacation, or any other reason that is not related to COVID-19. However, an employee may be able to take leave if his or her child’s care provider during the summer (such as a summer camp or other program in which the child is enrolled) is closed or unavailable for a COVID-19 related reason.

The full Department of Labor guidance, including the Frequently Asked Questions issued on April 20, 2020 (numbers 80-88) and May 7, 2020 (numbers 89-93) can be found here.