More on Emergency Family Medical Leave Act Expansion and Paid SIck Leave Act

Take-Away: The Department of Labor (DOL) on March 29, 2020 provide frequently asked questions and answers to these two Acts. There is some clarification, while still some confusion or the need for further guidance from the DOL.

Key Clarification Points:

1. COVID-19 sick leave is in addition to any and all other forms of employer or state mandated sick leave.
2. A full time employee is defined to be entitled to 80 hours of sick leave as employees who are normally scheduled to work 40 hours or more per week.
3.  A part-time employee is an individual who is entitled to receive the number of hours they average over a two week period as employees who are scheduled to work fewer than 40 hours.
4. If a small business employer, with less than 50 employees, wants to be exempted from providing these new sick leave benefits, the employer needs to demonstrate that the providing COVID-19 sick leave and Family Medical Leave Act expansion leave pay would jeopardize the viability of the business as a going concern, and thus these benefits need not be provided. Unfortunately the Q&A says that the Department of Labor will later provide examples of what the small business employer must show to indicate its business would be jeoparized, i.e. small business owners will still have to guess what proof is required to show the viability of their business would be jeopardized.
5. The health care provider exclusion from these coronavirus and FMLA extended leave benefits is broadly defined as “anyone employed at various health care facilities, as well as other entitles that contract with health care providers to offer services or maintain the operations of the facility.”
6. Leave under the FMLA expansion is limited by the number of weeks an employee still has available to them under the ‘regular’ FMLA. For example, if an employee has used 7 weeks of FMLA leave in a 12 month period, that employee one will have 5 weeks of leave available under the FMLA expansion.
7. Leave under the FMLA expansion is any leave between April 1, 2020 and December 31, 2020.
8. When paid leave is being calculated it must include any overtime pay due an employee if the hours normally scheduled would be more than 40 hours in a week.
9. Paid sick leave and leave under the FMLA expansion are not retroactive.
10. Not all leave under the FMLA is paid leave. It is paid leave when it exceeds ten (10) days.