FAQs

< Previous	Table of Contents	Next >

How does an employer tally hours a part-time employee works if they are unknown or they vary?

If the normal/scheduled hours are unknown, or if the part-time employee schedule varies, you may use a six-month average to calculate the average daily hours. A part-time employee may take paid sick leave for that number of hours per day up to two weeks, and may take expanded family and medical leave for the same number of hours per day up to 10 weeks after that.

If this calculation cannot be made because the worker has not been employed for at least six months, use the number of hours that you and your employee agreed that she or he would work at the time of hire. If there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

When calculating pay due to employees, must overtime hours be included?

Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours he or she normally would have been scheduled to work even if that's more than eight hours in a day or 40 hours in a week.

The Emergency Paid Sick Leave Act, however, requires that sick leave be paid only up to 80 hours over a two-week period. For example, 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. So the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

Note that pay needn't include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

How should the regular rate of pay be calculated?

Under the FFCRA, paid leave is calculated using the average of the employee’s regular rate over a period of up to six months prior to the date on which leave is taken. If the employee has not worked for six months, the regular rate to calculate paid leave is the average of the regular rate of pay for each week the employee worked for the current employer.

If employees are paid by commissions, tips or piece rate, those amounts should be incorporated into the above calculation if they are included in the calculation of the regular rate under the California Labor Code or Federal Labor Standards Act.

You can compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

May an employer deny an employee paid sick leave if it granted sick leave prior to the act going into effect?

No. The Emergency Paid Sick Leave Act imposes a new requirement on employers effective April 1, 2020.

Is all leave under the FMLA now paid?

No. The only type of family and medical leave that is paid is leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds 10 days. It includes leave taken only because the employee must care for a child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19 precautions.

Are the paid sick leave and expanded family and medical leave requirements retroactive?

No.

What records must an employer keep when an employee takes paid sick leave or expanded family and medical leave?

Regardless of whether you grant or deny a request for paid sick leave or expanded family and medical leave, you must document:

the name of the employee requesting leave;
the date for which leave is requested;
the reason for leave; and
a statement from the employee that he or she is unable to work because of that reason.

If your employee requests leave because he or she is subject to a quarantine or isolation order, or to care for an individual subject to such order, you also should document the name of the government entity that issued the order. If your employee requests leave to self-quarantine based on the advice of a health-care provider or to care for an individual who is self-quarantining based on such advice, you should document the name of the provider who gave advice.

If your employee requests leave to care for his or her child whose school or place of care is closed, or whose child care provider is unavailable, you may document:

the name of the child;
the name of the school, place of care, or child care provider that has closed or become unavailable; and
a statement from the employee that no other suitable person is available to care for the child.

Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you claim a tax credit under the FFCRA or your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation for your records. Obtain the applicable IRS forms for instructions and information about procedures for claiming a tax credit. Retain any documents and information to substantiate the credit claim. You are not required to provide leave if material sufficient to support the applicable tax credit could not have been provided.

Note: All certification requirements under the FMLA remain in effect if the employee is taking leave for one of the qualified reasons under that act. For example, if the employee is taking more leave than the two weeks of emergency paid sick leave because the COVID-19 medical condition is deemed to be a serious health condition, she or he must continue to provide medical certifications under the FMLA if required by the employer.

What does it mean to be unable to work, including telework, for reasons related to COVID-19?

An employee is unable to work when the employer has provided work, and one of the COVID-19 qualifying reasons defined in the FFCRA prevents the worker from being able to perform it at his or her normal work site or by teleworking.

If an employee is or becomes unable to telework, is she or he entitled to paid sick leave or expanded family and medical leave?

If the employer permits teleworking and the employee is unable or becomes unable to work because of one of the qualifying reasons for paid sick leave, he or she is entitled to take paid sick leave.

If the employee is unable to telework because he or she must care for a child due to closure by a school or place of care, or because the child care provider is unavailable because of COVID-19 precautions, the employee is entitled to take expanded family and medical leave. Of course, if the employee is able to telework while caring for the child, paid sick leave and expanded family and medical leave are not available.

May an employee take paid sick leave or expanded family and medical leave intermittently while teleworking?

Yes, if the employer allows it and if the employee is unable to telework during the normal work schedule due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, the employee and employer may agree that the employee may take paid sick leave intermittently while teleworking. They also may agree to that arrangement if the employee can't telework during his or her scheduled hours because of the need to care for a child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 precautions.

If an employer closes the work site before April 1, 2020 (the effective date of the FFCRA), may an employee still get paid sick leave or expanded family and medical leave?

No. If, prior to the FFCRA’s effective date, the employer sent employees home and stopped paying them because it didn't have sufficient work, an employee will not get paid sick leave or expanded family and medical leave, but he or she might be eligible for unemployment insurance benefits. This is so whether the employer closes the work site for lack of business or because it is required to close by federal, state or local directive.

If an employer closes the work site on or after April 1, 2020 (the effective date of the FFCRA), but before an employee goes on leave, may the employee still get paid sick leave and/or expanded family and medical leave?

No. If the employer closes after the FFCRA’s effective date (even if the employee requested leave prior to the closure), the employee will not get paid sick leave or expanded family and medical leave. But the worker might be eligible for unemployment insurance benefits. This is so whether the employer closes because of a lack of business or because it was required to close by federal, state or local directive.

What happens if an employer closes a work site while an employee is on paid sick leave or expanded family and medical leave?

If the employer closes while an employee is on paid sick leave or expanded family medical leave, the employer must pay for any paid sick leave or expanded family and medical leave used before the business closed. As of the closure date, the employee is not entitled to paid sick leave or expanded family and medical leave, but might be eligible for unemployment insurance benefits. This is so whether the closure was due to lack of business or to a federal, state or local directive.

If an employer is open, but furloughs employees on or after April 1, 2020 (the effective date of the FFCRA), may they receive paid sick leave or expanded family and medical leave?

No. If the employer furloughs employees for lack of business, the workers are not entitled to take paid sick leave or expanded family and medical leave. But they might be eligible for unemployment insurance benefits.

If an employer closes the work site on or after April 1, 2020, (the effective date of the FFCRA), but tells employees that the business will reopen eventually, are they eligible to receive paid sick leave or expanded family and medical leave?

No, not while the work site is closed. If the employer closes the business even for a short period of time, employees are not entitled to take paid sick leave or expanded family and medical leave. But they might be eligible for unemployment insurance benefits. This is so whether the closure is due to a lack of business or to a federal, state or local directive.

If an employer reduces an employee’s scheduled work hours, may that worker use paid sick leave or expanded family and medical leave for the hours he or she no longer is scheduled to work?

No. If the employer reduces work hours because it does not have available work, the employee may not use paid sick leave or expanded family and medical leave for the lost work hours. Such employees were not prevented from working because of a qualifying reason for COVID-19, even if the reduction in hours somehow was related to the virus.

The employee, however, may take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents him or her from working a full schedule. If an employee does take paid sick leave or expanded family and medical leave, the amount to which the worker is entitled is computed based on his or her work schedule prior to the reduction in hours.

May an employee collect unemployment insurance benefits for a period during which he or she received pay for sick leave and/or expanded family and medical leave?

No. If an employer provides paid sick leave or expanded family and medical leave, employees are not eligible for unemployment insurance.

May an employee use an employer’s pre-existing leave entitlements and the FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours?

During the first two weeks of unpaid expanded family and medical leave, the employee may not take pay for both emergency sick leave and pre-existing paid leave unless the employer agrees to allow the worker to supplement the amount he or she receives from both forms of paid leave, up to what the employee normally earned. After the first two work weeks (usually 10 workdays) of expanded family and medical leave, however, the employee may elect –– or be required by the employer –– to take any remaining expanded family and medical leave at the same time as any existing paid leave that under the employer’s policies would be available in that circumstance. This probably would include personal leave or paid time off.

If employees are required to take their existing leave concurrently with their remaining expanded family and medical leave, the employer must pay them the full amount to which they are entitled under the existing paid leave policy for the period of leave taken. If an employee exhausts his or her pre-existing paid leave and still is not entitled to additional expanded family and medical leave, the employer must pay him or her at least two-thirds of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday, and $10,000 total, for expanded family and medical leave.

If an employee believes an employer is covered under the FFCRA, but it refuses to provide paid sick leave or expanded family and medical leave, what are the remedies?

If an employee believes that his or her employer is covered under the FFCRA and is improperly refusing to provide paid sick leave or expanded family and medical leave, the worker should complain to the U.S. Department of Labor's Wage and Hour Division at 1-866-4US-WAGE (1-866-487-9243) or https://www.dol.gov/agencies-whd.

Does an employee have a right to return to work if he or she is taking paid sick leave or expanded family and medical leave under the PSLA or the FMLA?

Generally, yes. In light of congressional direction to interpret requirements among the acts consistently, employers are required to provide the same (or a nearly equivalent) job to an employee who returns to work following paid sick leave or expanded family and medical leave. So an employer may not fire, discipline or otherwise discriminate against employees because they take paid sick leave or expanded family and medical leave. An employer may not fire, discipline, or otherwise discriminate against an employee because he or she has filed any type of complaint or proceeding relating to these acts, or has indicated an intent to testify in any such proceedings.

But employees are not protected from employment actions, such as layoffs, that would have affected them regardless of whether they took leave or made a complaint. An employer may lay off employees for legitimate business reasons, such as the closure of the work site. The employer must be able to demonstrate that it would have laid off workers even if the leave had not been taken or the complaint had not been made.

The employer also may refuse to return an employee to work in his or her same position if the worker is a highly compensated “key” employee as defined under the FMLA, or if the employer has fewer than 25 employees, and the employee took leave to care for her or his child whose school or place of care was closed, or whose child care provider was unavailable, and all four of these hardship conditions exist:

The employee’s position no longer exists due to economic or operating conditions that affect employment and for reasons related to COVID-19 during the period of leave.
The employer made reasonable efforts to restore the employee to the same or equivalent position.
The employer makes reasonable efforts to contact the employee an equivalent position becomes available.
The employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 concludes or the date 12 weeks after the employee’s leave began, whichever is earlier.

May an employee take leave under the Family and Medical Leave Act over the next 12 months if the worker used some or all of his or her expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act?

It depends. The employee may take a total of 12 work weeks of leave during a 12-month period under the FMLA and the Emergency Family and Medical Leave Expansion Act. If the employee took some, but not all 12 work weeks of his or her expanded family and medical leave by Dec. 31, 2020, he or she may take the remaining portion of FMLA leave for a serious medical condition, as long as the total time taken does not exceed 12 work weeks in the 12-month period. Note that expanded family and medical leave is available only until Dec. 31, 2020 –– after that, employees may take only take FMLA leave. See next section on the interaction of the FFCRA and FMLA/CFRA.

If an employee takes leave under the Emergency Paid Sick Leave Act, does it count against other types of paid sick leave to which the employee is entitled under state or local law, or under the employer’s policy?

No. Paid sick leave under the EPSLA is in addition to other leave provided under federal, state or local law; an applicable collective bargaining agreement; or the employer’s existing company policy.

How does an employee know if she or he may receive paid sick leave for a federal, state or local quarantine or isolation order related to COVID-19?

The FFCRA includes quarantine or isolation orders, as well as stay-at-home orders, issued by any federal, state or local government authority that cause the employee to be unable to work (or to telework) even though the employer has work that could be performed but for the order. Employees may not take paid sick leave for this qualifying reason if the employer does not have work for them as a result of a stay-at-home order.

If an employee becomes ill with COVID-19 symptoms, decides to quarantine for two weeks, then returns to work but has not sought a medical diagnosis or advice of a health-care provider, may he or she be paid for those weeks under the paid sick leave Law?

Generally, no. If an employee becomes ill with COVID-19 symptoms, the employee may take paid sick leave under the FFCRA only to seek a medical diagnosis or if a health-care provider otherwise advises that person to self-quarantine. If the employee tests positive for the virus associated with COVID-19 or is advised by a health-care provider to self-quarantine, he or she may continue to take paid sick leave. An employee may not take paid sick leave under the FFCRA if he or she unilaterally decides to self-quarantine for an illness without medical advice, even with symptoms of COVID-19.

When is an employee eligible for paid sick leave to care for someone who is subject to a quarantine or isolation order?

An employee may take paid sick leave to care for an individual who, as a result of being subject to a quarantine or isolation order, is unable to care for himself or herself and depends on the employee for care, and if the provision of it prevents the employee from working and from teleworking.

The employee may take paid sick leave only to care for an individual who genuinely needs his or her care. Those people include immediate family members or someone who regularly resides in the employee’s home. The employee also may take paid sick leave to care for someone if the relationship creates an expectation that the worker would care for the person in a quarantine or self-quarantine situation, and that individual depends on the employee for care during that period.

The employee may not take paid sick leave to care for someone with whom he or she has no relationship. Nor may the employee take such leave to care for someone who does not expect or depend on his or her care during the quarantine period.

May an employee take paid sick leave or expanded family and medical leave to care for his or her child who is 18 years or older?

It depends. Under the FFCRA, paid sick leave and expanded family and medical leave relate to care for one or more of an employee’s children when their schools or places of care are closed or their child care provider is unavailable, due to COVID-19 precautions. The leave may be taken only to care for an employee’s non-disabled child if he or she is younger than 18. If the child is 18 or older, has a disability and cannot care for himself or her herself because of it, the employee may take paid sick leave and expanded family and medical leave to provide care if the child's school or place of care is closed or his or her child care provider is unavailable, due to COVID-19 concerns, and the employee is unable to work or telework as a result.

May more than one guardian take paid sick leave or expanded family and medical leave simultaneously to care for a child whose school or place of care is closed, or whose child care provider is unavailable because of COVID-19?

An employee may take paid sick leave or expanded family and medical leave to care for his or her child only when the employee needs to care, and actually is caring, for the child, and is unable to work or telework because she or he is providing care. Generally, employees needn't take such leave if a co-parent, co-guardian or the employee’s usual child care provider is available to provide the care the child needs.

When is an employee eligible for paid sick leave based on a “substantially similar condition” specified by the U.S. Department of Health and Human Services?

The HHS has not identified any “substantially similar conditions” that would allow an employee to take paid sick leave. If it does, the Department of Labor will issue guidance explaining when someone may take paid sick leave on the basis of a “substantially similar condition.”

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

Generally, no, unless the employee was able to return to light duty before taking leave. If the employee receives workers’ compensation or temporary disability benefits because of an inability to work, he or she may not take paid sick leave or expanded family and medical leave. But if the employee was able to return to light duty, and a qualifying reason prevents him or her from working, he or she may take paid sick leave or expanded family and medical leave, as the situation warrants.

May an employee take paid sick leave or expanded family and medical leave under the FFCRA if he or she is on an employer-approved leave of absence?

It depends on whether the leave of absence is voluntary or mandatory. If it's voluntary, the employee may end the leave and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents him or her from being able to work (or telework). But the employee may not take such paid sick leave or expanded family and medical leave if the leave of absence is mandatory because it is not a qualifying reason for leave; that is, one that prevents the employee from being able to work (or telework).

Employees taking mandatory leaves of absence might be eligible for unemployment insurance benefits.

Like the traditional FMLA, may expanded family leave under the FFCRA unilaterally be designated by the employer?

If an employee requests expanded family leave for purposes allowed by the statute, the employer unilaterally may designate the leave as FFCRA expanded family leave. Employers should adhere to the FMLA requirements of notifying the employee of the designation, how the employer calculates the leave year, how much FMLA leave the employee has available and his or her expected return date.

May an employer retroactively designate leave as expanded family leave or expanded sick leave under the FFCRA?

The FMLA requires the employer to designate leave as qualifying for FMLA within five business days of receipt of certification of the need for leave.^[1] If the employer doesn’t designate leave within five days, it retroactively may designate it as FMLA leave if the failure to timely designate doesn’t prejudice or harm the employee.

May employees take expanded family leave under the FFCRA if they have used some or all of their leave under FMLA for other purposes?

An employee working for an employer with 50 or more employees is entitled to 12 weeks of FMLA leave per 12-month period (as defined by the employer). If the employee has used all of his or her yearly leave prior to the request for FFCRA expanded leave, she or he is not entitled to the expanded leave. If the worker has used part of the yearly FMLA leave, he or she is entitled to take what's left as expanded family leave. Employers subject to FMLA requirements should be aware of CFRA leave that might entitle the employee to additional leave if his or her employee's illness or that of a family member can be considered a “serious health condition.”

Must an employer grant expanded family leave under the FFCRA during the summer when the employee's child is out of school for vacation?

No, an employee may not use expanded family leave under FFCRA for closures unrelated to COVID-19.

Must an employer grant expanded FMLA if a child’s summer camp is closed due to COVID-19? If so, must an employee prove that the child was enrolled before the camp closed?

It’s unclear. The term "child care provider" includes camps, recreational programs or day-care centers, so if the employee can show that the child was enrolled at the time of closure per COVID-19, the employer must grant the expanded family leave request. If the employee cannot show that the child was enrolled, a strict reading of DOL guidance seems to suggest that granting the leave is not required. But it’s possible, for example, that: the camp never accepted enrollment because it never planned to open in light of the pandemic; the employee intended to enroll the child; the employee was planning for the child go to grandma’s house but grandma is unavailable. In these situations, we recommend that the employer give the employee the benefit of the doubt, and grant the expanded family leave.

Is a company responsible for providing expanded sick leave and expanded family leave benefits under the FFCRA to its workers hired from a temporary agency?

Possibly. According to the DOL, if a temp employee is employed by a temp agency with 500 or more employees, the agency is not required to pay workers expanded sick leave or family leave under the FFCRA. But if the company where the temp employees work is required to provide these benefits to its employees, the company must provide them to the temps if it's a true joint employer with their agency.

A joint employment relationship exists when the company: (1) hires and fires the employee; (2) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; (3) determines the employee’s rate and method of payment; and (4) maintains the employee’s employment records. It's an important factual analysis, so employers should contact their attorneys with questions about joint employment.

For an employee to be eligible for expanded family leave under FFCRA, may his or her employer require the worker to look for alternate child care if the regular child care provider remains closed due to the pandemic in order ?

No. There is no requirement that an employee must exhaust all possible child care options before becoming eligible for FFCRA expanded family leave. Employers should require employees to provide a statement, per the FFCRA, that the child care facility is closed due to the pandemic.

May an employee refuse FFCRA benefits?

Yes. But if the employee has symptoms of the illness or has tested positive for coronavirus, the employer may send the employee home and require her or him to quarantine. Employers always should offer FFCRA benefits, in writing, even if employees say they don’t want to use them.

Must employers provide expanded sick leave under the FFCRA to an employee who voluntarily travels internationally and, per CDC guidelines, should quarantine for 14 days?

Maybe. Employers must provide expanded sick leave to employees unable to work because they are subject to a federal, state or local COVID-19 quarantine or isolation order. The DOL did not define the term “quarantine or isolation order,” but the regulations broadly define a quarantine or isolation order to include: quarantine, isolation, containment, shelter-in-place/stay-at-home orders issued by any federal, state or local government authority that causes the employee to be unable to work, even though his or her employer has work the employee could perform but for the order.

This includes when a federal, state or local government authority has advised categories of citizens (for example, people within a certain age range or with certain medical conditions) to shelter in place, stay at home, isolate or quarantine. Such employees would be unable to work even though their employers have work for them. So, CDC guidance on quarantining after international travel may be considered an order pursuant to the DOL regulations. Even if it’s not considered an order as contemplated by the law, employers are encouraged to consider allowing the employee to quarantine and use expanded sick leave to prevent possible exposure at work and to provide the worker with the broadest possible coverage and interpretation of the FFCRA, as the DOL requires. That department emphasizes that employees who are subject to a quarantine or isolation order are not eligible for paid sick leave if they are otherwise able to work or telework.

May I require employees to exhaust paid sick leave, including expanded sick leave under FFCRA, before they may receive TD benefits under the existing executive order?

An employer may require an employee to use FFCRA expanded sick leave benefits before TD but may not require him or her to use other sick leave benefits not specifically related to COVID-19. Gov. Newsom’s Executive Order N-62-20 directs that an employee who has COVID-19 and has paid sick leave benefits available (expanded sick leave benefits under FFCRA) must exhaust those benefits before any TD or other benefits under Labor Code section 4850 are due and payable. But employees who receive workers’ compensation or temporary disability benefits because they are unable to work may not take expanded sick leave and expanded family leave unless they were able to return to light duty before taking leave.

Does FFCRA expanded family leave require written designation, as under the FMLA?

Because employers must keep records of employees' use of FFCRA for tax credit purposes, it's wise to designate the expanded family leave taken by an employee in writing. In addition, because expanded family leave isn’t in addition to that under the FMLA, it's also wise to advise employees in writing how much FMLA leave they have available as required under its regulations.

Does leave under the FFCRA/FMLA and the CFRA run concurrently?

Expanded family leave runs concurrently with that under the FMLA but, because the CFRA does not allow leave when an employee is unable to work because a child’s school or care is unavailable due to reasons related to COVID-19, it does not run concurrently with expanded family leave under the FFCRA and FMLA in this instance.

INTRODUCTION

EMPLOYMENT AND LABOR LAW

WORKERS' COMPENSATION LAW

FAQs — Families First Coronavirus Response Act

From Navigating COVID-19