• FMLA/PSL Federal Mandate Guidelines – FAQs

  • FMLA/PSL Federal Mandate Guidelines – FAQs

    Do I have to provide federal paid leave for employees who are laid-off? 
    No. Federal leave requirements will not apply if an employee is laid-off.
    NOTE: A business should have a legitimate business reason for laying an employee off

    What if I am closed for business, but do not lay-off my employees? 
    The employee may then use any accrued PTO or state/local paid sick leave. The employee will need to be paid federal paid sick leave beginning April 1st. See the Wage and Hour Questions below for further guidance.

    How will the new federal paid leave laws be enforced? 
    There are penalties for non-compliance; however, good faith mistakes will not be penalized in the first 30 days. This means employers should be striving for compliance and remedying any mistakes as soon as possible.

    Under what circumstances does an employee receive emergency paid sick leave? 
    Beginning no later than April 1, 2020, and throughout the rest of the year, covered employers must provide paid emergency sick leave to any employee—regardless of how long they have worked—who is unable to work for any one of the following reasons:
    1. The employee is subject to a federal, state, or local quarantine or an 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.
    3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
    4. The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
    5. The employee is caring for an individual who has been advised by a health care provider to self-quarantine due to the concerns related to COVID-19.
    6. The employee is caring for his/her child in the event of school or daycare closure due to COVID-19, or if the childcare provider of the son or daughter is unavailable due to COVID-19 precautions.
    7. The employee “is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.”

    How many hours of emergency paid sick leave do I need to provide? 
    Fulltime employees are entitled to a total of 80 hours (i.e., two weeks) of paid emergency paid sick leave. Part-time employees are entitled to paid sick leave to cover their average hours worked in a typical two-week period. If hours vary from week to week, employers should look to the average of hours worked over the prior six months as a guide. For new hires, emergency paid sick leave should be granted based on a reasonable estimate of weekly hours.

    Employee is experiencing symptoms and seeking diagnosis.
    If the employee is unable to work because they are experiencing symptoms and seeking diagnosis of a suspected COVID-19 case, they are entitled to their usual wage or salary subject to a cap of $511 per day or $5,110 over ten days.

    NOTE: The pay requirements are based on the employee’s usual wages or salary over a typical two-week period; however, sick leave pay may not be lower than required minimum wage in your jurisdiction. For example, some employers pay tipped employees less than the state/local minimum wage because ordinarily they make-up the difference in tips. (This is known as a “tip credit”). The employee’s ordinary wage might be something like $5.00 per hour, while state/local minimum wage might be significantly higher. In that scenario paid sick leave must be paid out at the highest applicable minimum wage rate. 

    Can I require an employee to exhaust accrued PTO time and sate/local paid sick leave before providing federal emergency paid sick leave? 
    No. The FFCRA prohibits employers from requiring an employee to exhaust accrued PTO or state/local paid sick leave.

    Do I have to give emergency paid sick leave if I already provide PTO or if I am already required to provide paid sick leave by state/local law? 
    Employees are entitled to utilize federal emergency paid sick leave before using state or local paid sick leave, or accrued PTO.

    Can I require my employees to use PTO? 
    It depends on state law. But, generally employers may require exempt or non-exempt employees to use accrued PTO if they are taking leave for personal reasons, as in the case of a self-imposed quarantine. In any event, employers are prohibited from requiring an employee to use PTO before using federal emergency paid sick leave time.

    Do I have to provide emergency paid sick leave for overtime hours? 
    Yes, if the employee typically works more than 40 hours in a week; however, DOL guidance provides that the employer need not provide “premium” pay for overtime hours where the employee is drawing emergency paid sick leave. And in any event, the employer is permitted to cap paid sick leave pay at 80 hours over two weeks. 

    What if I provided paid sick leave prior to April 1, 2020? 
    Paid leave provided prior to April 1, 2020 will not count to fulfill your obligation to provide emergency paid sick leave under the FFCRA.

    Am I required to pay for an employee out on leave after they have exhausted federal emergency paid sick leave? 
    Yes, if the employee has unused state or local paid sick leave, or if the employee has unused PTO.

    Additionally, the FFCRA has amended the Family Medical Leave Act (FMLA) to require paid leave to qualifying employees who are unable to work because their children are unable to attend school or daycare as a result of COVID-19. Under these new rules the employer must begin providing FMLA for these parents at 2/3rds the employee’s usual rate of pay or salary; however, the benefit is capped to $200 per day and $10,000 in the aggregate.

    NOTE: FMLA usually applies only to companies with 50 or more employees; however, under the FFCRA, paid FMLA leave requirements apply to small employers unless they qualify for an exemption.

    When does an employee qualify for paid FMLA leave? 
    Any employee who has worked for at least 30 days is entitled to take job-protected FMLA leave to care for a child when their school or daycare is closed as a result of the COVID-19 pandemic. This applies to any business with fewer than 500 employees.

    How long must I provide paid FMLA for employees caring for children home from school or daycare as a result of COVID-19? 
    FMLA provides job-protected leave for up to 12 weeks for qualifying employees. While the FMLA does not usually provide for paid leave, the FFCRA requires employers to begin paying for leave related to child-care after the employee has been out of work for ten days as a result of a school or daycare closure. Required paid FMLA leave is capped at $10,000 over 12 weeks.

    Is there a small business exemption for federal emergency paid sick leave or paid FMLA leave
    As enacted, the FFCRA mandates all employers with fewer than 500 employees to provide emergency paid sick leave. But, the FFCRA delegates authority to the Secretary of Labor to allow hardship exemptions for businesses with fewer than 50 employees if providing emergency paid sick leave or paid FMLA “would jeopardize the viability of the business as a going concern.” NFIB is requesting guidance and or rulemaking from the Department of Labor that will provide clarity and relief to small businesses to the extent possible.

    We are still awaiting forthcoming regulations that will provide greater clarity. But for now, DOL is saying that businesses with fewer than 50 employees may “elect this small business exemption” by documenting that their viability would be jeopardized by providing paid leave. This likely requires documentation that the business lacks sufficient cash-flow to meet these obligations notwithstanding the fact that the employer may claim tax credits. We provide further guidance on tax credits below.

    NOTE: Health care providers and emergency responders are exempt from paid FMLA requirements.

    What documentation should I require from an employee claiming paid leave?
    Given the current strain on the medical system, it is unlikely doctors will be able to provide notes for employees during this crisis. It is therefore inadvisable to require proof from an employee that they are sick.

    But it is prudent to require employees who are out to provide written attestation as to the reason for their leave so that you can confirm whether it qualifies. This may also help in case the IRS asks questions when you are claiming the tax credit for payment of federal paid sick leave and or paid FMLA.

    Can I reduce an exempt employee’s salary to cope with cash-flow issues?
    The employee would lose exempt status if you were to reduce his or her salary. In that situation, the employee would have to be converted to an hourly employee and would be entitled to overtime going forward.


    OTHER EMPLOYMENT LAW QUESTIONS:

    When can I lay-off an employee? 
    An employment relationship may generally be terminated for any reason not prohibited by public policy as established by enacted law and regulation. Employers may terminate an employee if they have a legitimate business reason, as in the case of an employer eliminating a position that is no longer needed or if the company must layoff employees to remain financially viable. Employers must avoid any inference of discrimination and or retaliation where an employee has exercised his or her legal rights. For example, it may be problematic if a company is picking and choosing which employees to lay-off, and disproportionately lays-off employees who are likely to qualify for paid leave—i.e., employees with young children.

    Do I have to accommodate employees who are unable to work? 
    It depends on whether the employee needs accommodation due to a disability protected by the ADA. In some cases leave related to COVID-19 may implicate FMLA or other state law protections. For example, California requires up to 40 hours of leave for school-related emergencies for certain employers.

    When do I have to provide FMLA Leave? 
    The FMLA generally only applies to companies with 50 or more employees and provides a right to job-protected (unpaid) leave for up to 12 weeks when the employee is dealing with a serious medical issue and/or providing care for a spouse, child or parent who is dealing with a serious medical issue. So COVID-19 might implicate FMLA under those circumstances.

    • An employee taking traditional FMLA leave might use accrued sick leave or PTO time; however, the employer is not required to provide pay. But again the new Act of Congress requires paid FMLA leave if the employee is unable to work because they are at home taking care of a child who cannot attend school or daycare as a result of COVID-19.

    How long will an employee be allowed to remain on my health insurance if they are no longer working? 
    A group health plan will generally define how long an employee may go without working before their health care coverage expires. It is advisable to consult your insurance carrier for guidance.

    Where can I find additional guidance on employment issues? 
    DOL guidance is available here. Major employment law firms are providing guidance online, including Ogletree Deakins, Fisher Phillips, Jackson Lewis, and Sidley.