The Most Important DOL Guidance for You to Know regarding Expanded Family Medical Leave and Paid Sick Leave

APRIL 2, 2020

On April 1, 2020, the U.S. Department of Labor (DOL) issued a temporary rule to implement the public health emergency and paid sick leave provisions.  The regulations are consistent with the questions and answers previously issued, and discussed below, as well as the webinar discussed below.  The most important clarification in the regulation is the type notice an employee must provide to the employer, and the documentation the employer may require the employee to provide as to the need for such leave.  Therefore, the applicable regulations in these areas are attached, Sections 826.90 and 826.100. 

The Wimberly & Lawson webinars led by Larry Stine and Jim Hughes were packed full, and were extended until each and every question was answered.  For those of you wanting a link to the PowerPoints and our webinar video, we will have those available by Monday, April 6, 2020.  If you would like the PowerPoint portion of the webinar sooner, please send request to Jim Wimberly at jww@wimlaw.com.

• How do I know if my business is under 500 employees?
  • It is measured at the time leave is to be taken, and includes both full-time and part-time, and also jointly-employed employees, but independent contractors are not counted. Employees of affiliated companies are not counted unless they meet the integrated employer and/or joint employer tests. (Q2)
• How do I take advantage of the small business exemption for fewer than 50 employees?
  • A small business may claim this exemption if an authorized officer of the business has determined that providing paid sick and expanded family leave will result in the small business's expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; or the absence of the employees requesting paid sick leave or expanded family and medical leave entail a substantial risk to the financial health or operational capabilities of the small business; or there are not sufficient workers who are able, willing, and qualified to perform the labor services which are needed for the small business to operate at a minimal capacity. (Q58, 59)
• How do I count hours worked by part-time employees?
  • Part-time employees are entitled to leave for the average number of work hours in a two-week period, but you may use a six-month average if the part-time hours vary. (Q5)
• In calculating pay due to employees, must overtime hours be included?
  • You must pay an employee for hours the employee would have normally been scheduled to work, even if that is more than 40 hours, but paid sick leave is paid only up to 80 hours over a two-week period. (Q6)
• How much will an employee be paid while taking paid sick leave or expanded family and medical leave?
  • If you are taking paid sick leave because you are unable to work or telework due to leave because you: (1) are subject to a quarantine or isolation order related to COVID-19; (2) have been advised by a healthcare provider to self-quarantine; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of your regular rate of pay or the applicable legal minimum wage, to a maximum of $511.00 per day or $5,110.00 total over the entire paid two-week period. If you are taking paid sick leave because you are:  (1) caring for an individual who is subject to a quarantine or isolation order related to COVID-19 or an individual who has been advised by a healthcare provider to self-quarantine; (2) caring for your child whose school or place of care is closed, or the childcare provider is unavailable, you are entitled to compensation at 2/3 of the greater of the amounts above, to a maximum of $200.00 per day or $2,000.00 over the entire two-week period.  If you are taking expanded family medical leave, you may take paid sick leave for the first 10 days of that leave, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer's policy.  For the following 10 weeks, you will be paid for your leave in an amount no less than 2/3 of your regular rate of pay, to a maximum of $200.00 per day or $12,000.00 for the 12-weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or a childcare provider is unavailable, due to COVID-19.  (Q7)
• What is my regular rate of pay?
  • It is the average of your regular rate over a period of up to six months prior to the date on which you take leave. (Q8)
• Can I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason?
  • (Q9)
• If I am home with my child because his or her school or place of care is closed, or a childcare provider is unavailable, how does paid sick leave and expanded family and medical leave interact?
  • You may be eligible for both types of leave, but only for a total of 12 weeks of paid leave. After the first 10 work days have elapsed, you will receive 2/3 of your regular rate of pay in the subsequent 10 weeks. (Q10)
• What records do I need to keep when my employee take paid sick leave or expanded family and medical leave?
  • You may require your employee to provide you with any additional documentation and support of such leave to the extent permitted under the certification rules for conventional FMLA leave requests. This could include a notice that has been posted on a government, school, or daycare website, or published in the newspaper, or an email from an employee or official of school, a place of care, or childcare provider. (Q15)
• What documents do I need to give my employer to get paid sick leave or expanded family and medical leave?
  • In addition to the answer in 9, all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA, such as the medical certification requirement beyond the two weeks of emergency paid sick leave because your medical condition or COVID-19-related reasons rises to the level of a serious health condition. (Q16)
• When am I able to telework?
  • You may telework when your employer permits or allows you to perform work while you are at home, and it is not compensated under the paid leave provisions. (Q17)
• If I am or become unable to telework, am I entitled to paid sick leave or expanded family medical leave?
  • You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons prevents you from being able to perform that work. To the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available. (Q19)
• May I take paid sick leave or expanded family and medical leave intermittently while teleworking?
  • Yes, if your employer allows it and if you are unable to telework your normal schedule of hours. In that situation, you and your employer may agree that you may take paid leave intermittently while teleworking. You may take intermittent leave in any increment, providing that you and your employer agree.  (Q20)
• May I take my paid sick leave intermittently while working at my usual work site?
  • Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs. (Q21)
• May I take expanded family and medical leave intermittently while my child's school or place of care is closed, and a childcare provider is unavailable, if I am not teleworking?
  • Yes, but only with your employer's permission, and you and your employer agree upon such a schedule. (Q22)
• If my employer closes my worksite before or after April 1, 2020, can I still get paid sick leave and/or expanded family and medical leave?
  • No, but you may be eligible for unemployment insurance benefits. This result also applies if your employer furloughs you because it does not have enough work or business for you. (Q23, 24)
• What if my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work?
  • This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, given if your reduction of hours was somehow related to COVID-19. You may take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule, the amount of leave being computed based on your work schedule before it was reduced.  (Q28)
• Can I collect unemployment insurance benefits for time in which I receive pay for paid sick leave and/or expanded family and medical leave?
  • (Q29)
• If I elect to take paid sick leave or expanded family and medical leave, must my employer continue my health coverage?
  • You are entitled to continued group health coverage on the same terms as if you continued to work, making any normal contributions to the cost of your health coverage. If you do not return to work at the end of your expanded leave, you may be able to continue your coverage under COBRA. (Q30)
• May I use my employer's pre-existing leave entitlements in my paid sick leave and expanded family and medical leave concurrently for the same hours?
  • Generally, no, unless your employer agrees to allow you to supplement the amount you receive from paid sick leave or expanded family and medical leave up to your normal earnings, with pre-existing leave. (Q31)
• Do I have a right to return to work if I am taking paid sick leave or expanded family and medical leave?
  • Generally, yes, but you are not protected from employment actions, such as lay-offs, that would have affected you regardless of whether you took a leave. (Q43)
• Do I qualify for leave even if I have already used some or all of my leave under the FMLA?
  • You are entitled to paid sick leave regardless of how much leave you have taken under the FMLA. However, your eligibility for expanded family and medical leave depends on how much leave you have already taken during the 12-month period. Paid sick leave is not a form of FMLA leave and therefore it does not count toward the 12-week cap, but if you take paid sick leave concurrently for the first two weeks of expanded family and medical leave, then those two weeks do count towards the 12 work weeks.  (Q44)