To see the full list of Questions and Answers provided by the DOL see their website. Below we’ve provided a quick summary of answers provided to the more pressing questions we received and/or see as concerns for our clients.
What Was Answered
- Effective Date officially April 1, 2020
In previous articles and webinars, both provided by Navigant and circulating on the web, you’ve seen April 2, 2020 as the effective date. What happened? As we pointed out in our website the Act says it must be effective “no later than” 15 days after enactment. Which meant April 2 was the last day it could possibly take effect. The DOL has now announced that this will take effect on April 1 – which means you have until March 31 to make some very important decisions about your staffing levels and what you can afford to pay.
- Overtime hours must be included
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.
But – according to the DOL “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.” So it appears the pay rate is based on the regular hourly rate – not time and a half. We’ll dig into this more to get a clearer answer. However; the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave may make the question of time and a half rate a moot point.
- Regular rate of pay is based on a 6-month average.
Many businesses have considered reducing employee salaries and hourly rates during this period. The DOL has clarified that “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.” So this reduction would have little impact on what you are required to pay to long-term employees. Reduction could have more of an impact for new employees as for employees with under 6-months of tenure at your business “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.”
The DOL also clarified that “if you are paid with commissions, tips, or piece rates, these wages will be incorporated into the above calculation.”
- Sick leave under the Act is capped at 80 hours – not 80 hours per qualifying event.
The DOL stated that an employee “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 [an employee may] receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.”
- FFCRA Sick and FMLA leave will run consecutively.
The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period can be used to cover the first ten workdays of the expanded family and medical leave (FMLA), which are otherwise unpaid unless an employee elects to use existing vacation, personal, or medical or sick leave instead. If employees qualify, they can then use the expanded FMLA leave. Note that means an employee could use existing sick/vacation time for the first two weeks, then take their FMLA leave and then take the 2 weeks sick leave – so they could stretch this to fourteen weeks paid leave (more if they have additional vacation/sick leave to tack on at the end). Keep in mind that employees can only receive the additional ten weeks of expanded FMLA leave to care for a minor child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
- If you already gave employees sick leave for qualifying events under the new Act – you still have to give them their FFCRA leave (if they qualify).
The DOL confirmed that The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.
- The paid sick leave and expanded family and medical leave requirements are not retroactive.
This was confirmed by the DOL.
- Paid leave only applies to the new FMLA leave provision – not all FMLA leave.
The DOL confirmed that the only type of family and medical leave that is paid leave is the 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.
- Employed for at least 30 calendar days by the employer is now clarified.
An employee is considered to have been employed by you for at least 30 calendar days if that employee has been on your payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, an employee that wants to take leave on April 1, 2020, would need to have been on your payroll as of March 2, 2020.
What Was Not “Answered”
What does “jeopardize the viability of my business as a going concern” mean.
How did the DOL answer this question which is – based on the number of calls I’ve received this week – clearly the most pressing question businesses with under 50 employees want answered? Basically “stay tuned”. The DOL says this one will be “addressed in more detail in forthcoming regulations” And asks you to “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.”
Should you have any questions about the FFCRA or any other laws that may affect your business, or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.
Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law, Collaborative Divorce & Mediation.
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Waltz, Palmer & Dawson, LLC
3701 Algonquin Rd. Suite 300, Rolling Meadows, Illinois 60008
Phone: (847) 253-8800