FAQs — Families First Coronavirus Response Act

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How does the employer count hours worked by a part-time employee if the hours are unknown or they vary? If the normal hours scheduled are unknown, or if the part time employee schedule varies, you may use a 6-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, 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 employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And 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 the employee would have been normally scheduled to work even if that is more than 8 hours in a day or 40 hours in a week.

However, the Emergency Paid Sick Leave Act requires that paid 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. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

Please note, that pay does not need to 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? For purposes of the FFCRA, the regular rate of pay used to calculate paid leave is 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 used 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 with commissions, tips, or piece rate, this amount should be incorporated into the above calculation to the extent they are included in the calculation of the regular rate under the California Labor Code or FLSA.

You can also 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.

Can an employer deny an employee paid sick leave if it granted the sick leave to my employee prior to the act going into effect? No. The Emergency Paid Sick Leave Act imposes a new law requirement on employers that is effective beginning on April 1, 2020.

Is all leave under the FMLA now paid leave? No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds 10 days. This includes only leave taken because the employee must care for a child whose school or place of care is closed or child care provider is unavailable, due to COVID-19-related reasons.

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 following:

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 the 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 should additionally 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 healthcare provider or to care for an individual who is self-quarantining based on such advice, you should additionally document the name of the healthcare 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 childcare provider is unavailable, you may also document:

The name of the child being cared for; 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. You should consult IRS applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if material sufficient to support the applicable tax credit could not have been provided.

Please also note that all existing certification requirements under the FMLA remain in effect if the employee is taking leave for one of the existing qualified reasons under the FMLA. For example, if the employee is taking leave beyond the two weeks of emergency paid sick leave because the medical condition for COVID-19-related reasons rises to the level of a serious health condition, an employee 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 COVID-19-related reasons? The employee is unable to work when the employer has provided work and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents the employee from being able to perform that work, at the employee’s normal work site or by telework.

If the employee is or becomes unable to telework, is the employee entitled to paid sick leave or expanded family and medical leave? Where the employer permits teleworking and the employee is unable or becomes unable to perform work because of one of the qualifying reasons for paid sick leave, then the employee is entitled to take paid sick leave.

Similarly, if the employee is unable to teleworking because he or she needs to care for their child to school or place of care is closed, or childcare provider is unavailable, because of COVID-19 related reasons, then the employee is entitled to take expanded family and medical Leave. Of course, to the extent, the employee is able to telework while caring for their child, paid sick leave and expanded family and medical leave is 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 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. Similarly, if the employee is prevented from teleworking during his or her normal schedule of hours because of the need to care for their child to school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the employee and employer may agree that the employee can take expanded family medical leave intermittently while teleworking.

If an employer closes the work site before April 1, 2020 (the effective date of the FFCRA), can 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 employees because it did not have sufficient work, the employee will not get paid sick leave or expanded family and medical leave, but the employee may be eligible for unemployment insurance benefits. This is true whether the employer closes the work site for lack of business or because it is required to close pursuant to Federal, State, or local directive.

If the employer closes the work site on or after April 1, 2020 (the effective date of the FFCRA), but before an employee goes out on leave, can 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 may be eligible for unemployment insurance benefits. This is true whether the employer closes the work site for lack of business or because it was required to close pursuant to a federal, state, or local directive.

If the employer closes a worksite while an employee is on paid sick leave or expanded family and medical leave, what happens? 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 employer closed. As of the date the employer closes the worksite, the employee is no longer entitled to paid sick leave or expanded family and medical leave, but may be legible for unemployment insurance benefits. This is true whether the employer closes the work site for lack of business or because the employer was required to close pursuant to a federal, state, or local directive.

If the employer is open, but furloughs employees on or after April 1, 2020 (the effective date of the FFCRA), can the employee receive paid sick leave or expanded family and medical leave? No. If the employer furloughs employees because it does not have enough work or business, the employees are not entitled to then take paid sick leave or expanded family and medical leave. However, employees may be eligible for unemployment insurance benefits.

If the employer closes the work site on or after April 1, 2020, (the effective date of the FFCRA), but tells employees that it will reopen at some time in the future, are our employees 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 worksite, even for a short period of time, employees are not entitled to take paid sick leave or expanded family and medical leave. However, employees may be eligible for unemployment insurance benefits. This is true whether the employer closes the work site for lack of business or because it has required to close pursuant to a federal, state or local directive.

If the employer reduces an employee’s scheduled work hours, can the employee use paid sick leave or expanded family and medical leave for the hours that the employee 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 hours that are no longer scheduled to work. This is because employees are not prevented from working during these hours due to a COVID-19 qualifying reason, even if the reduction in employee hours was somehow related to COVID-19.

The employee may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents the employee from working his or her full schedule. If an employee does take paid sick leave or expanded family and medical leave, the amount of leave to which the employee is entitled is computed based on the employee’s work schedule before it was reduced.

May an employee collect unemployment insurance benefits for a time in which he or she received pay for a paid sick leave and/or expanded family and medical leave? No. If the employer provides paid sick leave or expanded family and medical leave, employees are not eligible for unemployment insurance.

Can the employee use the 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 simultaneously take paid sick leave under Emergency Sick Leave and pre-existing paid leave, unless the employer agrees to allow the employee to supplement the amount he or she receives from paid sick leave with the employee’s existing paid leave, up to the employee’s normal earnings. 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 to the employee in that circumstance. This would likely 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 the employee the full amount to which he or she is entitled under the existing paid leave policy for the period of leave taken. If the 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 the employee at least two-thirds of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200.00 per workday and $10,000.00 in total, for expanded family and medical leave.

What are an employee’s remedies if he or she believes the employer to be covered under the FFCRA but the employer refuses to provide paid sick leave or expanded family and medical leave as required by the Act? 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 Department of Labor will accept complaints. The WHD can be contacted at 1-866-4US-WAGE (1-866-487-9243) or 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 name EPSLA or the EFMLEA? Generally, yes. In light of congressional direction to interpret requirements among the Acts consistently, the Acts require employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave. In most instances, employees are entitled to be restored to the same or equivalent position upon return from paid sick leave or expanded family and medical leave. Thus, the employer is prohibited from firing, disciplining, or otherwise discriminating against employees because they take paid sick leave or expanded family and medical leave. An employer cannot 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.

However, 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. This means the employer can 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 employees even if the leave had not been taken or the complaint had not been made.

The employer may also refuse to return an employee to work in their same position if the employee 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 their son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions exist:

The employee’s position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons 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 you if an equivalent position becomes available; and

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 reasons 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 employee 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, including 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 December 31, 2020, the employee 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. Please note that expanded family and medical leave is available only until December 31, 2020; after that, employees may only take FMLA leave. See section below on the Interaction of FFCRA and FMLA/CFRA.

If an employee takes paid sick leave under the Emergency Paid Sick Leave Act, does that count against other types of paid sick leave to which the employee is entitled under state or local law, or the employer’s policy? No. Paid sick leave under Emergency Sick Leave is in addition to other leave provided under federal, state, or local law; and applicable collective bargaining agreement; or the employer’s existing company policy.

How does an employee know if he or she can receive paid sick leave for a federal, state, or local quarantine or isolation order related to COVID-19? For purposes of the FFCRA, a federal, state, or local quarantine or isolation order includes quarantine or isolation orders, as well as 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 (or to telework) even though the employer has work that he or she could perform but for the order. Employees may not take paid sick leave for this qualifying reason if the employer does not have work for the employee as a result of a shelter-in-place or a stay-at-home order.

If an employee becomes ill with COVID-19 symptoms, decides to quarantine for two weeks, and then returns to work but does not seek a medical diagnosis or advice of a healthcare provider, can the employee get paid for those two 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 healthcare provider otherwise advises you to self-quarantine. If the employee tests positive for the virus associated with COVID-19 or are advised by a healthcare provider to self-quarantine, the employee may continue to take paid sick leave. An employee may not take paid sick leave under the FFCRA if the employee unilaterally decides to self-quarantine for an illness without medical advice, even if the employee has COVID-19 symptoms.

When is an employee eligible for paid sick leave to care for someone who is subject to a quarantine or isolation order? The 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 him or herself and depends on the employee for care and if providing care prevents the employee from working and from teleworking.

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

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

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 include leave to care for one or more of the employee’s children, when his or her school or place of care is closed or child care provider is available, due to COVID-19 related reasons. This leave may only be taken to care for an employee’s nondisabled child if he or she is under the age of 18. If the employee’s child is 18 years of age or older with a disability and cannot care for him or her herself due to that disability, the employee may take paid sick leave and expanded family and medical leave to care for him or her if his or her school or place of care is closed or his or her child care provider is unavailable, due to COVID-19 related reasons, and the employee is unable to work or telework as a result.

Can one or more guardian take paid sick leave or expanded family and medical leave simultaneously to care for the employee’s child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons? 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, and actually is, caring for his or her child if the employee is unable to work or telework as a result of providing care. Generally, employees do not need to 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 U.S. Department of Health and Human Services (HHS) has not yet identified any “substantially similar conditions” that would allow an employee to take paid sick leave. If HHS does identify any such condition, the Department of Labor will issue guidance explaining when the employee 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 the employee is receiving workers’ compensation or temporary disability benefits through an employer or state provided plan? In general, 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 the employee is unable to work, the employee may not take paid sick leave or expanded family and medical leave. However, if the employee was able to return to light duty and a qualifying reason prevents the employee from working, the employee may take paid sick leave or expanded family and medical leave, as the situation warrant.

May an employee take paid sick leave or expanded family and medical leave under the FFCRA if the employee is on an employer approved leave of absence? It depends on whether the leave of absence is voluntary or mandatory. If the employee’s leave of absence is voluntary, the employee may end his or her leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents the employee from being able to work (or telework). However, the employee may not take paid sick leave or expanded family and medical leave under the FFCRA if the leave of absence is mandatory. This is because it is the mandatory leave of absence - and not a qualifying reason for leave - that prevents the employee from being able to work (or telework).

In the instance of a mandatory leave of absence, the employee may be eligible for unemployment insurance benefits.

SEE ALSO

• Other sections in this book

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< Emergency Family and Medical Leave Expansion Act	Table of Contents	How Families First Coronavirus Response Act Interacts with Family and Medical Leave Act & California Family Rights Act >