KAM is providing this information in conjunction with London Amburn as a service to the membership to assist with regulatory changes with regards to the COVID-19 pandemic. Additionally, KAM leadership is working with state and local authorities to address this public health crisis and will keep the membership updated as the situation develops. KAM stands ready to assist in any way possible to keep our community healthy.
Importantly, the Q&A guidance sets the effective date of the new law as April 1, 2020, expiring December 31, 2020.
How do I determine the number of employees?
The law applies to employers with 499 or fewer employees, counting (i) full-time and part-time employees; (ii) employees on leave; (iii) temporary employees who are jointly employed by you and another employer; and (iv) day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Independent contractors do not count toward the total number of employees.
If my business has fewer than 50 employees, and implementing the FFCRA would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?
To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria that will be detailed in regulations issued by the DOL in the near future. As of now, it appears that sending documentation or an application to the DOL for the exemption will not be required, but more information as to how to make the election is expected in the regulations.
I employ healthcare providers, how do I elect to exempt my healthcare provider employees?
Unfortunately, the DOL Q&A did not offer guidance on how to exempt healthcare provider employees from the FFCRA. However, you should expect to be required to document how the healthcare provider employee meets the criteria for exemption that will be detailed in the regulations expected from the DOL in the near future.
How do I count hours worked by a part-time employee for purposes of FFCRA leave?
You calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. If this calculation cannot be made because the employee has not been employed for at least six months, use the average hours per day the employee was scheduled to work over the entire term of his or her employment.
When calculating pay due to employees, must overtime hours be included?
Yes. Employers must 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 total number of hours paid under the Emergency Paid Sick Leave Act is still capped at 80.
How much pay does an employee receive while taking FFCRA leave?
It depends on the employee’s normal work schedule and why the employee is taking leave:
Paid Sick Leave (80 hours)
A. If taking paid sick leave because the employee is unable to work or telework due to one of these three reasons:
(1) the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
(2) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
(3) the employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis,
then, the employee is entitled to compensation at a rate which is the greater of:
· the full federal minimum wage in effect under the FLSA, or
· the full applicable State or local minimum wage.
Under any of these circumstances, the maximum compensation amount is $511 per day, or $5,110 total over the entire two-week paid sick leave period.
B. If taking paid sick leave because the employee is unable to work or telework due to one of these three reasons:
(1) the employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
(2) the employee is caring for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or
(3) the employee is experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services,
then, the employee is entitled for compensation at 2/3 of the greater of the amounts above.
Under any of these circumstances, the amount of compensation is capped at $200 per day, or $2,000 over the entire two week period.
Expanded FMLA Leave (up to 12 weeks)
There is only one reason for an employee to be eligible for expanded FMLA leave: the employee is on leave to care for the employee’s child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.
The first 10 days of the expanded FMLA leave period is unpaid, but the employee may substitute any accrued vacation leave, personal leave, or medical or sick leave (including the FFCRA Paid Sick Leave).
For the following 10 weeks, the leave is paid, at an amount no less than 2/3 of the employee’s regular rate of pay for the hours the employee would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, this compensation is capped at $200 per day or $10,000 for the 10 week period.
How do I calculate “regular rate of pay” for purposes of the FFCRA?
For purposes of the FFCRA, the “regular rate of pay” used to calculate paid leave is the average of the employee’s regular rate over a period of up to six months prior to the date on which the employee takes leave. If an employee has not worked for you for six months, the regular rate is the average of the employee’s regular rate of pay for each week the employee has worked for you.
Commissions, tips, and piece rates will be incorporated into the above calculation.
You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.
May an employee take the 80 hours of paid sick leave more than once?
No. The total number of hours for which an employee may receive paid sick leave is capped at a total of 80 hours between April 1 and December 31, 2020, under the Emergency Paid Sick Leave Act.
Can I deny an employee paid sick leave if the employee was given paid leave or used PTO for a reason identified in the Emergency Paid Sick Leave Act prior to April 1, 2020?
No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.
Does the emergency FMLA change any other part of FMLA?
No. Traditional FMLA has not changed, and it still only applies to employers with 50 or more employees, and it is still unpaid.
Are the paid sick leave and expanded family and medical leave requirements retroactive?
Where do I post the FFCRA notice? Since many employees are teleworking, how do I electronically “post” the notice?
The poster notice must be posted in a conspicuous place on your premises. You may also satisfy the notice requirement by emailing or direct mailing the notice to employees, or posting the notice on an employee information internal or external website.
Do I have to share the FFCRA notice with recently laid-off individuals?
No, the FFCRA requirements apply only to current employees.
The COVID-19 pandemic and response is an evolving situation. All levels of government are engaged in the process of preparing new legislation, regulations and orders both to stem the spread of the virus and to provide relief to employers and employees. We will continue to monitor the situation and provide updates as applicable, especially as such updates affect healthcare providers and their practices.