DOL Guidance on Expanded FMLA for COVID-19

March 25, 2020

The DOL has issued a Question and Answer guidance to assist in interpreting the amended FMLA, called the Families First Coronavirus Response Act.

Here are some points:

  1. The DOL says the effective date is April 1, 2020 – please note this is different than most people assumed, which was April 2.
  2. The 500 employee threshold includes both full and part-time employees, including those on leave, those who are jointly employed, and day laborers supplied by a temporary agency;
  1. Independent contractors are not covered
  1. There is a small business exemption for employers with fewer than 50 employees.  Employers may seek the small business exemption from the DOL and will have to show that providing the leave would jeopardize the viability of the business as a going concern.  Documentation will be required to meet specific criteria that apparently will be set forth by the DOL in regulations still to be released;
  1. To count hours worked by a part-time employee for purposes of the paid sick leave or expanded FMLA, you calculate the average hours worked in a two-week period.  If the schedule varies or normal hours are not scheduled, you use a six-month average to calculate the average daily hours.  If the employee has not been employed for at least six months, you use the number of hours you and the employee agreed the employee would work upon hire.  If there is no such agreement, you calculate the hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his/her employment.   The amount an employee receives is calculated as follows.

Under the paid sick leave law, if the leave is because the employee is unable to work or telework due to a need for leave because the employee (1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) is experiencing symptoms of COVID-19 and is seeking medical diagnosis, the employee will receive for each applicable hour the greater of:

  • His/her regular rate of pay;
  • the federal minimum wage in effect under the FLSA, or
  • the applicable State or local minimum wage.

The maximum is $511 per day, or $5,110 total over the entire paid sick leave period.

If the leave is because the employee is: (1) 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) caring for the employee’s child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, the pay is 2/3 of the greater of the amounts above.   Under these circumstances, the maximum is $200 per day, or $2,000 over the entire two week period.

If the leave is the expanded FMLA, the employee may use paid sick leave for the first ten days of that leave period (which is otherwise unpaid), or the employee may substitute any accrued vacation leave, personal leave, or medical or sick leave. For the remaining ten weeks, the employee will be paid no less than 2/3 of his/her regular rate of pay for the hours he/she 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, the employee cannot receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave.

  1. The total amount of paid leave under the paid sick leave law is 80 hours.  This includes all reason for leave covered by the Act – it is not 80 hours for one qualifying reason and then another 80 hours for another qualifying reason.
  2. If an employee is home with a child because school or daycare is closed, the employee may be eligible for both the FMLA and sick leave but is only entitled to a total of 12 weeks of paid leave.  The emergency paid leave law would provide for the first two weeks (80 hours) of leave to be paid.  That covers the first 10 workdays of FMLA, which is otherwise unpaid unless the employee elects to use existing accrued leave.  After those first 10 days (80 hours), the employee would receive 2/3 of his/her regular rate of pay for hours they would have been scheduled to work for the remaining 10 weeks of leave.
  3. The paid leave under the paid sick leave/FMLA laws starts April 1, so if an employer has provided paid leave before that date, they still need to provide what is required by these amendments.
  4. In order to be eligible for the expanded FMLA, the employee has to have been employed for at least 30 calendar days by the employer prior to the leave.  This means the employee has to have been on the employer’s payroll as of March 2, 2020.   If the employee was a temp and was subsequently hired on a full-time basis, the time spent as a temporary employee counts toward the 30-day eligibility period.

We will continue to keep you updated on any additional guidance as it becomes available.

This information is accurate as of March 25, 2020, and is subject to change based on any new legislation.

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell
Anne-Marie Storey, Esq
Rudman Winchell