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Apr 2020
April 24, 2020

DOL Supplements Its Guidance on the Families First Coronavirus Response Act

The U.S. Department of Labor (DOL) continues to update its Families First Coronavirus Response Act (FFCRA): Questions and Answers in an attempt to provide employers with guidance on how to implement the paid leave provisions of the FFCRA.

More specifically, the DOL added nine new Questions and Answers (Q&A) covering topics such as: 
  • How to compute the number of hours of Paid Sick Leave (PSL) and Emergency Family and Medical Leave Act (EFMLA) leave.
  • How to compute the employee’s average regular rate for purposes of PSL and EFMLA.
  • When determining the number of hours of PSL to provide, employers are permitted to round to the nearest time increment that they customarily use to track hours worked.
  • The six-month period used to calculate the average regular rate is the six months prior to the first day the employee takes PSL or EFMLA.
  • Under what circumstances an employer can require an employee to use existing leave under a company policy.
  • Additional clarification on when a “stay at home order” qualifies as a “quarantine or isolation order” for purposes of the FFCRA.
  • If the DOL brings an enforcement order on behalf of an employee, the employee is entitled to recover the entire amount due under the FFCRA for each hour of uncompensated PSL, not just the federal minimum wage for each hour of uncompensated PSL.

Of particular practical relevance to employers, the DOL provides examples of how employers should calculate the employee’s “regular rate” of pay for purposes of FFCRA leave. It also confirms that, “If during the past six months, you paid your employee exclusively through a fixed hourly wage or a salary equivalent, the average regular rate would simply equal the hourly wage or the hourly-equivalent of their salary.” 

The Agency also addresses when and how an employer can require an employee to use paid time under its normal policies. On this issue, the DOL notes: “Paid sick leave under the Emergency Paid Sick Leave Act is in addition to any form of paid or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement,” and that an employer “may not require employer-provided paid leave to run concurrently with—that is, cover the same hours as—paid sick leave under the Emergency Paid Sick Leave Act.” However, “An employer may require that any paid leave available to an employee under the employer’s policies to allow an employee to care for his or her child or children because their school or place of care is closed (or child care provider is unavailable) due to a COVID‑19-related reason run concurrently with paid expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.” In this situation, the DOL noted that the employer is required to pay the employee his or her full pay, rather than the 2/3 pay required under the EFMLA; however, the employer may only obtain tax credits for 2/3 of the pay. Further, the DOL noted that the “employee may elect,” but the “employer may not require” the employee to take PSL or leave under a normal company policy, but not both, for the first two unpaid weeks of EFMLA.

We are continuing to monitor the DOL’s guidance as it is updated. If you have any questions about the FFCRA or other issues associated with employees who continue to work or who are returning to work, please contact any member of Warner’s Labor and Employment Law Practice Group.

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