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DOL Issues Guidance on Emergency Paid Sick Leave and Public Health Emergency FMLA Leave Provisions

On March 24, 2020, the United States Department of Labor (DOL) issued initial guidance on the Families First Coronavirus Response Act (Act), which includes provisions for emergency paid sick leave and public health emergency leave under the Family and Medical Leave Act.  A link to the guidance is here.  


This update provides new DOL answers to some key compliance issues.  The DOL is expected to issue more comprehensive regulations in upcoming days.  A model notice that must be posted by covered employers is expected from the DOL by no later than March 25, 2020.


For additional COVID-19 guidance and resources, please visit our website at www.kasperfrank.com.  You can also follow us on Twitter at @kasperfrankllp or Facebook at facebook.com/kasperfrankllp.


What is the effective date of the Act?  The Act is effective April 1, 2020.  By this date, covered employers must provide emergency paid sick leave and public health emergency leave to eligible employees.


The employer already provided emergency leave and extra pay to employees prior to April 1, 2020.  Can the employer get credit for this leave time and/or extra pay?  No.  The Act becomes effective April 1, 2020.  Leave and/or extra paid time provided before that date cannot be credited against the Act’s requirements on and after the effective date.


I have fewer than 50 employees.  How does the employer claim “hardship” exemption from the pay and leave requirements?  For now, the DOL said to document why a business with fewer than 50 employees meets the hardship criteria under the Act.  The Act allows the Secretary of Labor the authority to exempt small businesses with fewer than 50 employees when the Act would “jeopardize the viability of the business as a going concern.”  As of today, the DOL does not want you to send anything to it. Rather, the DOL said employers should document its hardship and the DOL will provide additional guidance on the hardship criteria and how to claim the exemption “in forthcoming regulations.”


For emergency paid sick leave, must overtime be included toward the 80-hour cap?  Yes.  The Act requires employers to pay an employee for the hours the employee would have been normally scheduled to work even if that is more than 40 hours in a workweek.  However, the employee will never be eligible for more than 80 hours total. This means that an employee who regularly works 50 hours in a workweek will be paid for 50 hours of emergency sick leave in week one.  The employee will only have 30 hours of emergency sick leave left for upcoming workweeks.


For public emergency FMLA leave and pay, must overtime hours be included?  Yes.  According to the DOL, the Act requires employers to pay an employee for hours the employee would have been normally been scheduled to work even if that is more than 40 hours in a week.  Remember, the employee’s public emergency FMLA pay is capped at no more than $200 per day and $10,000 in the aggregate.


How is the employee’s “regular rate of pay” calculated for paid emergency sick leave and paid public emergency FMLA leave?  The employee’s regular rate of pay is the average of the employee’s regular rate over a period of up to six months prior to the date when paid time off is taken.  If the employee is paid with commissions or tips or on a piece rate, these wages must be incorporated into the employee’s regular rate.  The DOL says employers can compute the pay for each employee by adding all compensation that is part of the regular rate over the six-month-period and dividing that sum for all hours actually worked during the same period.


We recently “converted” temporary workers from an agency to employment with our Company.  When does the 30-calendar-day eligibility start for those employees?  Employers who hire temporary workers from an agency must count any days they previously worked as a temp toward this 30-day eligibility period.  

If you have any questions, please contact Brenda Kasper at 760-676-9452 or Lisa Frank at 760-676-9451.  For additional COVID-19 guidance and resources, please visit our website at www.kasperfrank.com.  You can also follow us on Twitter at @kasperfrankllp or Facebook at facebook.com/kasperfrankllp.

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