It has been about two weeks since the DOL issued guidance on the paid leave (EFMLA and EPSL) required by the Families First Coronavirus Response Act (FFCRA). Here is a summary of the DOL’s latest guidance — questions 80-88 on the Department’s FAQ page. These questions and answers primarily concern employees with irregular schedules and how to determine the number of leave hours and rate of pay for leave purposes. The Q&A also addresses use of existing leave to supplement FFCRA leave (FAQ 86), for which the DOL has provided inconsistent guidance in recent weeks. We’ll update this blog on that guidance shortly.
How do employers compute the number of hours of EPSL for employees who work irregular hours? (FAQ 80)
Estimate the number of hours an employee would work over a two-week period by calculating “the average number of hours your employee was scheduled to work per calendar day (not workday) over the six-month period ending on the first day of paid sick leave. This average must include all scheduled hours, including both hours actually worked and hours for which the employee took leave.”
The first two weeks of EFMLA is unpaid from an EFMLA standpoint. After the unpaid period, employees can receive up to 10 weeks of paid EFMLA, at 2/3 an employee’s regular rate, for the number of hours the employee was normally scheduled to work that day.
If you cannot calculate the number of hours an employee would normally work, and the employee has been employed for at least six month, employers calculate the average “number of hours [the] employee was scheduled to work per workday (not calendar day) divided by the number of workdays over the six-month period ending on the first day of your employee’s” paid EFMLA. All hours — including hours worked and leave hours — are included in this calculation.
Again, the DOL provides examples:
“Consider the examples below involving two employees with irregular schedules who take leave on April 13, 2020. For both employees, the six-month period would consist of 183 calendar days from October 14, 2019, to April 13, 2020.
The first employee worked 1,150 hours over 130 workdays, and took a total of 50 hours of personal and medical leave. The total number of hours the employee was scheduled to work (including all leave taken) was 1,200 hours. The number of hours per workday is computed by dividing 1,200 hours by the 130 workdays, which is 9.2 hours per workday. You must therefore pay the first employee for 9.2 hours per workday times 2/3 his or her regular rate for each day of expanded family and medical leave taken, subject to a $200 per day cap and $10,000 maximum (see Question 7).
The second employee, in contrast, worked 550 hours over 100 workdays, and took a total of 100 hours of personal and medical leave. The total number of hours the employee was scheduled to work, including all leave taken, was 650 hours. The number of hours per workday is computed by dividing 650 hours by the 100 workdays, which is 6.5 hours per workday. You must therefore pay the second employee for 6.5 hours per workday times 2/3 his or her regular rate for each day of expanded family and medical leave taken, subject to a $200 per day cap and $10,000 maximum (see Question 7).”
How do employers calculate an employee’s average regular rate for FFCRA purposes? (FAQ 82)
The FFCRA requires employers to pay employees based on the employee’s average regular rate, which is calculated based on the full workweeks during the six-months prior to the first day an employee uses EPSL or EFMLA.
If the employee received one rate during that period, the regular rate is the rate paid during the six-month period.
If the employee’s compensation includes commissions, tips, is based on a piece rate, or the rate otherwise changed, the average regular rate would be calculated as follows:
- Calculate the compensation for each full workweek during the six-month period.Include commissions, piece rate pay, and tips (the latter if the tip is applied toward the minimum wage obligation). Do not include overtime premium payments or payment for leave.
- Calculate the hours the employee actually worked each full workweek during the six-month period.Do not include leave hours.
- Divide the result from Step 1 by the result from Step 2.
The DOL provides additional examples in its answer to FAQ 82.
Employers generally may round — to the nearest tenth, quarter, or half hours — when calculating leave hours, so long as the employer is consistent in its rounding practices. FAQ 84. Moreover, if you round to the nearest quarter-hour for timekeeping purposes, you should round to the quarter-hour for FFCRA purposes.
Does the six-month look back window change if an employee uses leave on two separate occasions? (FAQ 85)
Per the DOL, “No.” Use the six-month period preceding the first day an employee takes leave under the FFCRA, whether EPSL or EFMLA.
When do shelter-in-place and stay-at-home orders qualify an employee for leave? (FAQ 87)
Stay-at-home orders and shelter-in-place orders qualify employees for leave only if the order itself is the reason the employee is unable to work or telework. Here are helpful examples:
“For example, if you are prohibited from leaving a containment zone and your employer remains open outside the containment zone and has work you cannot perform because you cannot leave the containment zone, you may take paid leave under the FFCRA. Similarly, if you are ordered to stay at home by a government official for fourteen days because you were on a cruise ship where other passengers tested positive for COVID-19, and your employer has work for you to do, you are also entitled to paid sick leave if you cannot work (or telework) because of the order. If, however, your employer closed one or more locations because of a quarantine or isolation order and, as a result of that closure, there was no work for you to perform, you are not entitled to leave under the FFCRA and should seek unemployment compensation through your State Unemployment Insurance Office.”