Department of Labor Issues Regulations to Implement Paid Sick Leave and Expanded Family and Medical Leave

Department of Labor Issues Regulations

Department of Labor Issues Regulations to Implement Paid Sick Leave and Expanded Family and Medical Leave

On April 1, 2020, the Department of Labor issued guidance to employers and employees on the implementation of the Families First Coronavirus Response Act (the “Act”). The Act requires employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVI-19.

The Department of Labor’s Wage and Hour Division (the “WHD”) will administer and enforce the Act’s paid leave requirements. The regulations will apply from April 1, 2020 through the effective date through December 31, 2020.

The WHD further informed citizens within the implementation that the Department of the Treasury presently asserts that every dollar of required paid leave (as well as the cost of the employer’s health insurance premiums during leave) will be 100% covered by a dollar-for-dollar refundable tax credit available to the employer.

Employers (excluding employers of health care providers or emergency responders) must all employees with:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work due to a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is not operating for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

Furthermore, most employers (excluding employers of health care providers/emergency responders) must provide to employees that it has employed for at least 30 days: Up to an additional 10 weeks of paid expanded family and medical leave at  2/3 the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is not operating for reasons related to COVID-19.

Notably, small businesses with less than 50 employees may qualify for an exemption to the paid expanded family and medical leave if the leave would jeopardize the small businesses ability to continue operating.

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee’s circumstances fall into one of the six following options:

  • Option 1: is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
    • Duration of Leave for Option 1: A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

    • Calculation of Pay for Option 1: employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
  • Option 2: has been advised by a health care provider to self-quarantine related to COVID-19;
    • Duration of Leave for Option 2: A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
    • Calculation of Pay for Option 2: employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
  • Option 3: is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
    • Duration of Leave for Option 3: A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
    • Calculation of Pay for Option 3: employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
  • Option 4: is caring for an individual subject to an order described in (Option 1) or self-quarantine as described in (Option 2);
    • Duration of Leave for Option 4: A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
    • Calculation of Pay for Option 4: employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
  • Option 5: is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; 
    • Duration of Leave for Option 5: A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
    • Calculation of Pay for Option 5: employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave)
  • Option 6: is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
    • Duration of Leave for Option 6: A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
    • Calculation of Pay for Option 6: employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

Employers that deny employees the first two weeks of paid sick time or terminate employees that take sick time that would be covered will be liable under§ 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217.  Penalties could include (but are not limited to) a $10,000 fine as well as exposure to liability for any sums due to the employee in wages, salary, employment benefits and any actual monetary losses incurred by the employee as a result of the employers violation.  Employers that deny employees their family and medical leave payments will potentially be liable under 29 U.S.C.A. § 2617 and will face exposure to similar penalties.

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