Category Archives: Paid time off

Employee Voting Rights: Are Employers Required to Give Time Off to Vote?

Contributed by Suzannah Wilson Overholt, October 15, 2020

Stickers to indicate voting

With the General Election on November 3rd rapidly approaching, registered voters are exploring various options for casting their ballots, be it through mail or in person early or on Election Day (November 3rd). One critical factor that may drive an individual’s voting plan is their work schedule, which raises the question of whether employers are required to give their employees time off to vote.

The answer to that question depends on the state where you work. A summary of the requirements from around the Midwest is below:

Illinois requires employers to give employees two paid hours off to vote. If the employee’s working hours begin less than two hours after opening of the polls and end less than two hours before closing of the polls, the employer must provide the employee a two hour paid absence during working hours. However, the employer may decide when the hours are taken. Employers may require that employees give at least one day’s advance notice of their intent to take the time off and to request paid leave.  No proof of voting is required.

Iowa requires employers to give employees as much time to vote as will add up to three hours when combined with non-work time.  However, time off to vote is not required if the employee has three consecutive non-work hours available while the polls are open.  The time off is paid but no proof of voting is required.  Employees must give their employers written notice of their intent to take voting leave before the election.  The employer may decide when the hours are taken.

Missouri requires employers to give employees three paid hours off to vote.  However, this leave is not required if the employee has three consecutive non-work hours available while the polls are open.  Employees seeking to take leave to vote must give notice prior to Election Day and must actually vote to be paid.  The employer may decide when the hours are taken.

Wisconsin also requires employers to allow employees up to three consecutive hours off to vote.  The time is unpaid and employees must notify their employers of their intent to take the leave before Election Day.  The employer may decide when the hours are taken.  No proof of voting is required. 

Kentucky requires employers to give employees a minimum of four hours of time off to vote.  The time is unpaid and employees must give one day’s advance notice of their intent to take the time off.  An employee who takes the time off but does not vote is subject to disciplinary action.  The employer may decide when the hours are taken.

Ohio requires employers to give employees a reasonable amount of time off to vote.  The time is only paid for salaried employees.  No advance notice or proof of voting is required.  An employer cannot refuse to allow an employee to serve as an election official on Election Day.

Neither Indiana nor Michigan requires employers to allow employees time off to vote. 

We encourage all registered voters to make a plan and cast their ballot.

UPDATE – Does a “Shelter-in-Place” or “Stay-at-Home” Order Trigger Paid Sick Leave under the FFCRA?

Contributed by Jeff Risch and Peter Hansen, April 6, 2020

22175873 – a 3d human character a question mark

As we now know, the Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave — under the Emergency Paid Sick Leave Act (EPSLA) — for specified reasons related to COVID-19 starting April 1. These reasons include: because the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.

Many states and local governments have now mandated shelter-in-place (SIP) or stay-at-home orders.

The question facing many employers is whether these SIP orders trigger the paid leave requirements of the FFCRA.

The U.S. Department of Labor (DOL) published its FFCRA rules on April 6, 2020 providing a little more guidance on this issue. According to the DOL’s regulations: 

For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any federal, state, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also includes when a federal, state, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter-in-place, stay-at-home, isolate, or quarantine, causing those categories of Employees to be unable to work even though their Employers have work for them.

In light of this authority, employers who continue to operate and have work available at their place of business need to carefully review the unique SIP order(s) impacting their operations and determine if there is any information advising categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter-in-place, stay-at-home, isolate, or quarantine and thereby causing those categories of employees to be unable to work even though work is available.  Of course, if an employee is able and allowed to work from home, then the employee would not be eligible for paid sick leave under the EPSLA. 

Again, it is critical for employers to evaluate the SIP order(s) covering their geographic footprint(s). Using Illinois as an example, the current stay-at-home order states that, “People at high risk of severe illness from COVID-19, including elderly people and those who are sick, are urged to stay in their residence to the extent possible except as necessary to seek medical care.”  However, questions abound. Does Governor Pritzker “urging” certain residents to stay at home render them eligible for EPSLA benefits if they cannot work from home? Notably, St. Louis County (MO) issued its own stay-at-home order with language similar to Illinois, and released an FAQ providing, in relevant part: It is highly recommended that high-risk populations (like persons over 60 years old or persons with underlying health conditions) should stay at home. 

Bottom Line:  An employee should not be eligible for the paid sick leave under the EPSLA if his/her assigned worksite closes down pursuant to an SIP order, or if it closes for any other reason, such as lack of business. However, employers should note that when they continue to operate, any employee who cannot work from home may be eligible for paid sick leave depending on the applicable SIP order in place expressly advising the employee to stay home due to specific instructions/restrictions. 

US DOL Releases Families First Coronavirus Response Act (FFCRA) Temporary Regulations and Updates FAQ’s

Contributed by Sara Zorich, April 3, 2020

The US Department of Labor (DOL) has posted its temporary regulations regarding the Families First Coronavirus Response Act (FFCRA).  The DOL is scheduled to post its published version on April 6, 2020.  The new regulations include parts 826.10 – 826.160 of the federal code and set forth the compliance requirements for employers with less than 500 employees for both the Emergency Paid Sick Leave Act (EPSLA) and the Expanded Family and Medical Leave (EFMLEA).

Additionally, the DOL continues to update its FFCRA FAQ’s and FAQ’s regarding posting requirements. At the time of this publication, those FAQ’s were most recently updated on April 2, 2020.

Employers subject to the FFCRA paid leave provisions must comply with these new regulations no later than April 1, 2020.  The DOL has a limited stay of enforcement regarding FFCRA compliance until April 17, 2020; however, the DOL has indicated that once it fully enforces the FFCRA, it will retroactively enforce violations back until the effective date of April 1, 2020, if employers have not remedied the violations.

As a reminder, employers covered by the FFCRA must post the following poster in a conspicuous place on its premises which can be satisfied by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. 

The FFCRA rules are complex and as COVID-19 stay in place orders, quarantines and directives change, those changes will impact an employer’s FFCRA compliance requirements.

DOL: FFCRA Leave Can Be Taken Intermittently By Agreement Of The Employee And Employer (In Some Circumstances)

Contributed by Brian Wacker, April 2, 2020

The Department of Labor has issued Temporary Regulations on the Families First Coronavirus Response Act (FFCRA) to address an issue already causing employers fits – namely, can employees use paid sick leave under the Emergency Paid Sick Leave Act (EPSLA) and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) intermittently?  

According to the DOL: it depends. 

The employer and employee must agree to intermittent leave.

First and foremost, the regulations are clear that “one basic condition” applies to all employees who seek to take leave under the FFRCA: “they and their employer must agree.” Without such an agreement, leave cannot be taken intermittently. While there is no requirement of a written agreement, it is advisable to have one.  Because the DOL has said that in the absence of a written agreement to intermittent leave, “there must be a clear and mutual understanding between the parties.”  In addition, the agreement must also be certain as to the increments of time in which the leave is taken intermittently. 

If the employer and employee agree to intermittent leave, when is it permissible under the FFCRA?

Intermittent leave is not permissible in all situations. 

If the employer and employee agree that the employee may telework (e.g., working from home), the employee is permitted to take intermittent leave (paid leave and/or expanded family or medical leave) in any agreed increment of time. This regulation is drafted intentionally broad to give employers flexibility to balance the needs of the teleworking employee and the “needs of the employer’s business.”

However, if an employee is still working at the employer’s jobsite, intermittent leave can only be taken “in circumstances where there is a minimal risk that the employee will spread COVID-19 to other employees at an employer’s worksite.” Therefore, the regulations allow an employer and employee reporting to a worksite to “agree that the employee may take paid sick leave or expanded family and medical leave intermittently solely to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, because of reasons related to COVID-19.” 

However, intermittent leave is prohibited for employees who report to an employer’s worksite – even if the employee and employer agree – if the leave it being taken for any of the following reasons:

  • because the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • because the employee is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis;
  • because the employee is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

According to the Regulations, in these situations, intermittent leave is prohibited due to the “unacceptably high risk that the employee might spread COVID-19 to other employees when reporting to the employer’s worksite.”  So once an employee starts taking leave for any of these reasons, she must continue to take it until either the entire amount of provided leave is taken or until she no longer has a qualifying reason to taken leave.

Finally, the Regulations clarified that when permissible intermittent leave is agreed to by the employer and employee, “only the amount of leave actually taken may be counted towards the employees leave entitlements.” This means that if an employee returns from leave prior to expiration of their leave entitlement under the FFCRA, they are still entitled to use the remaining leave entitlement for a separate qualifying reason and are not otherwise prohibited from doing so by the Intermittent Leave regulations.

Prior to the issuing the regulations, the DOL issued guidance on these issues, which is consistent with the regulations, which can be found on the DOL website.

Does a “Shelter in Place” or “Stay at Home Order” Trigger Paid Leave under the FFCRA?

Contributed by John Hayes, March 31, 2020

Clock and cash

***Please see updated information on FFCRA regulations in our April 3, 2020 post.

A component of the recently passed Families First Coronavirus Response Act (FFCRA) requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 starting April 1. Additionally, many states and local governments have now mandated that non-essential businesses close and that its citizens stay at home, subject to certain exceptions, often referred to as Shelter in Place (SIP) or Stay at Home orders.

The question facing many employers now is whether these SIP orders trigger the paid leave requirements of the FFCRA.

The short answer is no.

On March 28, 2020 the U.S. Department of Labor (DOL) issued guidance to address, among other things, the FFCRA provisions related to paid sick leave or expanded medical leave, and whether employers are required to provide paid leave under its provisions if it is forced to close pursuant to SIP orders.  The specific questions that address the provisions for the closure of a worksite can be found on the DOL website and the relevant portions of the answers read as follows:

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.

Bottom line: an employee is not eligible for the paid leave requirements of the FFCRA if their worksite closes down pursuant to an SIP order, or if it closes for any other reason, such as lack of business. However, employers should note that when they reopen and recall the affected employees to work, the recalled employees will be eligible for paid sick or family leave, if they meet the requirements under FFCRA. 

U.S. DOL Issues Guidance on “Health Care Provider” and “Emergency Responder” Definitions for FFCRA Exclusions

Contributed by Steven Jados, March 30, 2020

Studio macro of a stethoscope and digital tablet with shallow DOF evenly matched abstract on wood table background copy space

On March 28, 2020, the U.S. Department of Labor (DOL) issued an update to its “Families First Coronavirus Response Act: Questions and Answers” to address, among other things, the Families First Coronavirus Response Act (FFCRA) provisions that allow employers of “health care providers” and “emergency responders” to exclude such employees from the FFCRA’s emergency sick leave and expanded FMLA provisions. The specific questions that address the provisions for health care providers and emergency responders shown in this article can be found on the DOL website and read as follows:

Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. 

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.

The DOL also defined “emergency responder” for purposes of the FFCRA exclusions:

Who is an emergency responder?

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.

Employers having employees fitting the definitions above need to remember that the health care provider and emergency responder exclusions are discretionary, not automatic. As such, and in order to avoid confusion (and litigation down the road), we recommend that employers that intend to use either exclusion provide a short, simple notice to their employees to inform them of the fact that because they are included within the DOL’s definition of “health care provider” and/or “emergency responder,” and are essential to the fight against COVID-19, they are not eligible for emergency sick leave or expanded FMLA leave under the FFCRA. Such a notice should also advise employees that these exclusions do not affect their eligibility for FMLA leave under the terms of the FMLA in place prior to FFCRA enactment.    

And all employers should bear in mind that the fairly expansive definition of health care provider discussed above does not apply to the definition of a health care provider who can certify an employee’s need for FMLA leave. That definition remains limited to, essentially, licensed doctors of medicine, nurse practitioners, and certain others as discussed in FMLA regulations in place prior to FFCRA enactment.

While there is some “chatter” from Washington concerning potential “hazard pay” for these workers, employers who use these exclusions are permitted to implement their own policies and benefit programs unique to their workers. Employers should also remember to keep in mind any local or state paid leave mandates currently in place or that may develop in the coming weeks.

Can Employers Use Existing Paid Leave Benefits to Offset Emergency Paid Sick Leave under the FFCRA?

Contributed by Suzanne Newcomb and Brian Wacker, March 27, 2020

On March 18, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). A component of the FFCRA is the Emergency Paid Sick Leave Act (EPSLA), which requires covered employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to the COVID-19 corona virus starting April 1. 

Generally, EPSLA requires covered employers to provide all employees with two weeks (up to 80-hours) of paid sick leave at the regular rate of pay when the employee is unable to work because he/she is quarantined pursuant with governmental or doctor’s orders and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. Additionally, if the employee is unable to work due to a bona fide need to care for someone else under quarantine, or a child whose school is closed for COVID-19 related reasons, then the employer is required to provide two weeks of paid sick leave at the rate of two-third (2/3) the employee’s regular rate of pay.

The question, however, for many employers is whether any employer provided, or local/state government mandated, paid sick leave policy or other paid time off (PTO) benefits can be used to meet the EPSLA mandate and if not, whether an employer can require employees to first use previously earned/accrued sick leave prior to availing themselves of this new ESPLA benefit. 

The answer to both questions is NO. The EPSLA states that an employer “may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time.” The EPSLA does not expressly state paid sick leave in this limitation, but newly published guidance from the DOL clarifies that paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements. Accordingly, earned/accrued sick leave or other paid leave existing prior to April 1, 2020 cannot be used to offset or substitute for the mandates under the FFCRA.

Of course, existing employer provided, or local/state government mandated, paid sick leave or other PTO benefits can be used to cover absences that occur prior to April 1st or to extend the period of paid leave beyond FFCRA mandates. Employers may also choose to allow (but cannot require) employees receiving 2/3 pay under FFCRA’s paid sick leave or paid family and medical leave provisions to use existing paid leave to supplement the 2/3 pay up to the amount of the employee’s normal earnings.

Counting to 500 Under the Families First Coronavirus Response Act

Contributed by Peter Hansen, March 26, 2020

a 3d human character a question mark

As many of you know, employers with 500 or more employees are exempt from the Emergency Family and Medical Leave Expansion and the Emergency Paid Sick Leave provisions of the Family First Coronavirus Response Act (FFCRA). Now that the Department of Labor (DOL) released FAQs regarding the FFCRA, we know a bit more about how the DOL will count employees for the purpose of meeting the 500 employee threshold – including that it will apply the Fair Labor Standards Act’s (FLSA) joint-employer analysis and the Family and Medical Leave Act’s (FMLA) integrated employer test in making that determination. Now seems like as good a time as any for a brief refresher on the two tests.

FLSA Joint Employer Analysis

Under the FLSA, separate companies may become joint employers of an employee if both companies exercise control over the same employee. For example, say two companies benefit from an individual’s work but only one company designates the individual as their employee. To determine whether the two companies are the individual’s joint employer, the DOL would consider whether the second company exercises significant control over the employee’s work, including whether the second company:

  • hires or fires the employee;
  • supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;
  • determines the employee’s rate and method of payment; and
  • maintains the employee’s employment records.

Employers with 500 or more employees under the above FLSA joint employer analysis are not subject to either the FFCRA’s paid sick leave or paid FMLA leave provisions.

FMLA Integrated Employer Test

Under the FMLA, separate companies may be considered to be part of a single employer if they are an “integrated employer,” determined by considering the following factors:

  • The companies share common management;
  • The companies’ operations are interrelated;
  • The companies share control of labor relations; and
  • The companies share common ownership and/or financial control

Employers with 500 or more employees under the FMLA’s integrated employer test are not subject to the FFCRA’s paid FMLA leave provision – but, unless they have 500 or more employees under the FLSA’s joint employer analysis, may still be subject to the paid sick leave provision.

Each of the above tests are complicated, and the FFCRA remains subject to pending DOL guidance and regulations. As a result, any employers with questions or concerns regarding their joint employer or integrated employer status – or anything else relating to the FFCRA – should consult with counsel.

US DOL Releases FAQs re: the Families First COVID-19 Act (FFCRA) – April 1st Effective Date

Contributed by Julie Proscia, March 25, 2020

scales of justice and gavel on orange background

On March 24, 2020, the Department of Labor (DOL) released the much anticipated FAQs regarding the Family First Coronavirus Response Act (FFCRA). The DOL’s FAQs offer clarification on some of the more pressing questions that have been on employers’ minds. Of particular note is information relating to the counting of employees, commencement of the leave and compilation of the leave. Of major significance is that the FFCRA will become effective on April 1, 2020 (not April 2nd) and it is not retroactive (and, any benefits provided by employers now through March 31, 2020 cannot be counted towards the FFCRA in any way).

Highlights of the FAQs include:

Effective Date

The effective date of the FFCRA, which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act is April 1, 2020, and applies to leave taken between April 1, 2020 and December 31, 2020.

Counting Employees – How and when do you get to 500 – for purposes of paid sick leave and new FMLA mandates?

As a private sector employer you meet the 500 employee count threshold if at the time that the employee’s leave is to be taken, you employ under 500 full-time and part-time employees within the United States, which includes any state of the United States, the District of Columbia, or any territory or possession of the United States. When counting employees, employers should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and 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). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.  Further, where a corporation has an ownership interest in another corporation, the two are separate employers (with separate employee counts) unless they are joint-employers as analyzed under the FLSA.  The FLSA’s joint-employer analysis will dictate coverage under the new emergency paid sick leave mandate.  Also, two or more entities are separate employers unless they meet the “integrated employer test” under the FMLA.  If two or more entities are deemed “integrated” under the FMLA, then the employees of the integrated entities should be counted as one employer (combining the employee counts) for purposes of the new FMLA mandate.

Overtime Hours are included when calculating pay

When calculating the average pay under the FFCRA, the Emergency Family and Medical Leave Expansion Act requires employers to 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, as such this would include regularly scheduled overtime.

Please note, the Emergency Paid Sick Leave Act only requires that paid sick leave be paid up to 80 hours over a two-week period. The example given is as follows: an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80. This determination will change if the employee’s schedule varies from week to week. These amounts are subject to the daily and weekly caps as set forth in the FFCRA.

Leave is Not Duplicative

When answering the question of whether or not an employee may take 80 hours of paid sick leave for their personal self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act, the DOL clarified that this was not permissible.  Rather eligible employees may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which an employee will receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.

Interplay of Expanded FMLA

The DOL further clarified the interplay that can occur when employees are home with their child(ren) because their school or child care provider is closed or unavailable and whether or not they get paid sick leave, expanded family and medical leave, or both. Individuals in this scenario may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. Eligible employees may take both paid sick leave and expanded family and medical leave to care for their child(ren) whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two (2) weeks of paid leave. This period covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the employee elects to use existing vacation, personal, or medical or sick leave under the employer’s policy. After the first ten workdays have elapsed the employee will receive 2/3 of their regular rate of pay for the hours they would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act (up to $200 per day and $10,000 total).

Small Employer Exemption

Employers with less than 50 employees can attempt to justify why compliance with the mandates would jeopardize the viability of the business by documenting the reasons.  The DOL will be issuing more guidance specific to this process in the coming days/weeks.  At this time, such employers should be in contact with competent legal counsel to discuss this option.

While the FAQs answer some of the pressing questions, more clarification will emerge with the release of the regulations.  The interplay between the FFCRA and existing state and local leave laws is a complex issue that must be analyzed prior to the determination of any leave. Because of the complexity and evolving nature of the issues it is always advisable to consult with counsel when implementing or denying leaves under the FFCRA.

How Will an Employer’s Existing Paid Leave Policies Apply to The Families First Coronavirus Response Act Paid Leave Mandates

Contributed by the SmithAmundsen COVID-19 Task Force, March 19, 2020

With the ink barely dry on the president’s signature, employers are now turning to whether they need to and how to comply with the Families First Coronavirus Response Act (“Act”) (HR 6201).  Since the law was signed by President Trump on March 18, 2020, the leave provisions are set to go into place on April 2nd.  The US Department of Labor (“DOL”) shall provide a sample notice for employers required to comply with the emergency paid sick leave provisions within seven (7) days, and we may see additional guidance from the DOL in the near future.

First, note that the paid leave mandates are not applicable unless the employee is:  required or advised to quarantine by a healthcare provider or the government, experiencing symptoms and seeking a diagnosis, caring for an individual required or advised to quarantine, or caring for a child whose school/day care closed. (See our March 18, 2020 Blog Update).  If the employee is not requesting paid leave for one of these reasons, then the leave is not covered under the Act.

So, if the employee requests or needs paid leave for a covered reason, does an employer’s existing paid leave policy come into play? The final Act removed language included in prior versions related to an employer’s limitation on using its own paid leave programs prior to providing paid leave under HR 6201. However, there still remains a prohibition in requiring an employee to use “other paid leave” prior to the use of the paid mandates in this new law. 

It is our interpretation at this time (as said, the DOL will be providing a notice, and could weigh in with additional guidance prior to or on April 2nd) that if an employer provides paid SICK leave (including local or state paid sick leave mandates), then that SICK leave could likely be used to satisfy the paid leave requirements of the Act.  However, an employer looking to apply any existing paid SICK leave policy to off-set the new mandates would likely not receive the full tax credits available.  On the other hand, a traditional Paid Time Off (“PTO”) or vacation policy would not be applicable, most likely. 

Obviously, this is a very fluid situation and we continue to monitor all developments to share with our clients and contacts.