Labor Department Adds More Q&A’s on New Laws

Another week, another set of Department of Labor (DOL) FAQ’s on implementing the “Families First Coronavirus Response Act” (FFCRA) and the CARES Act. These appear as Questions 60-79 in their continuously expanding set of FAQ’s.

Most of the 20 new questions simply recharacterize previous information by stating it from the employee’s perspective (e.g. How much expanded sick leave may I take?) but there are a few nuggets to highlight:

Can more than one guardian take paid sick leave or expanded family and medical leave simultaneously to care for my child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons?

The DOL reiterates the position of the IRS that only one person is “needed” for care so that if someone else is also available to provide the needed care, the Emergency Paid Sick Leave (EPSL) and Emergency FMLA leave need not be provided. Indeed, they are quite direct in saying “[g]enerally, you do not need to take such leave if a co-parent, co-guardian, or your usual child care provider is available to provide the care your child needs.”

The DOL has previously stated (in FAQ #16) that to obtain leave to care for a child, the employer may require documentation stating that “no other suitable person is available to care for your child.” This raises the very real possibility that both parents may request this leave if they work for different employers, and both might be subject to employer sanction if it is later discovered (perhaps by a Facebook post showing the happy family hunkered down together at home) that there was more than one care-giver at home.

As an employer, how much do I pay a seasonal employee with an irregular schedule for each day of paid sick leave or expanded family and medical leave that he or she takes?

Seasonal employees with irregular schedules may be entitled to the EPSL and Expanded FMLA benefits of the Families First Coronavirus Response Act (FFCRA). However, calculating their entitlement proved to be a bit of a challenge.
The DOL has now laid out the steps for doing so:

1. First, the number of hours of leave that a seasonal employee may take is equal to the average number of hours each day that the employee was scheduled to work over the period of their employment up to the last six months.

2. Next, determine the employee’s regular rate of pay by adding up their total wages/salary over the period of employment, up to the last six months, and then dividing that by the number of hours actually worked.

3. Multiply the first calculation (daily hours of leave) by the second calculation (hourly rate of pay) to arrive at their actual daily paid leave amount.

Once you know the daily leave amount, that is the benefit they receive for leave (up to
$511 per day and $5,110 in total, if the employee is taking paid sick leave for the reasons that require full pay (namely they are subject to a quarantine or isolation order, they have been advised to self-quarantine because of COVID-19, or are experiencing symptoms of COVID-19 and is seeking a medical diagnosis).

The seasonal employee gets 2/3 of the daily paid leave amount, up to $200 per day and $2,000 in total, if they are eligible for leave for the other qualifying reasons (namely, the need to care for someone subject to a quarantine/isolation order, someone who has been directed to self-isolate by a health care provider or is experiencing “any other substantially similar condition, as determined by the Secretary of Health and Human Services”).

May I take paid sick leave or expanded family and medical leave if I am receiving workers’ compensation or temporary disability benefits through an employer or state-provided plan?

The DOL says no unless the employee had returned to light duty and then had to miss work due to an event that would qualify them for EPSL or Expanded FMLA.

Will DOL begin enforcing FFCRA immediately?

The DOL said they would hold off on any enforcement actions through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the law. We will have to see what they start doing after that date.

Bottom Line

As employers begin to implement these new obligations, more questions are  likely to arise, and the DOL will almost certainly add more FAQ’s.  We will keep you apprised.