For the last several weeks, the Department of Labor has periodically updated its Families First Coronavirus Response Act: (FFCRA) “Questions and Answers” page by illustrating real-world applications of the FFCRA.  We covered previous updates on March 31, 2020 and March 25, 2020.  The most recent updates – questions 80-88 – illustrate common issues in computing employee hour and pay entitlements under the FFCRA, among others.

Computing employee sick leave hours:

The FFCRA entitles employees to 2 weeks of paid sick leave (up to 80 hours) based on the number of hours they are regularly scheduled to work.  While regular full-time employees don’t require a calculation, what about employees with variable schedules?

  1. Estimate the number of hours based on the 6-month period immediately prior to the beginning of sick leave.
  2. Use the average number of hours per calendar day, not work day.
  3. The average must include all scheduled hours, i.e., “hours actually worked and hours for which the employee took leave.”
  4. If an employee began work less than 6 months before FFCRA sick leave, the employer should use the entirety of the employee’s tenure to estimate their hours.

The same 6-month lookback principle applies to calculating an employee’s hourly entitlement to Emergency Family and Medical Leave Expansion Act (EFMLEA) leave, under which an employee is entitled to 2/3 pay of their estimated hours per day.

Computing employee average regular rate:

FFCRA paid leave is based on the employee’s average regular rate.  Again, for employees with consistent hours and salary or wage, the average rate is either the employee’s “hourly wage or the hourly-equivalent of their salary.”  Complications arise with tips, commissions, and overtime premiums.  The DOL advises the following steps.

  1. Calculate “the employee’s non-excludable remuneration for each full workweek during the six-month period.” Commissions, piece-rate pay, and tips (to the extent they count towards minimum wage obligations) are included.  Tips above minimum wage obligations and overtime premiums are excluded.  Unlike the hours calculation above, leave time payments are excluded for the regular rate calculation.
  2. Compute all hours actually worked over the 6-month lookback period (again, exclusive of compensated leave time).
  3. To get the average regular rate, divide all non-excludable income by all hours actually worked.

For employees who are paid fixed salaries with variable hours, the regular rate would depend on the hours worked each week.  Where hourly records are unavailable, employers should use a “reasonable estimate.”

Rounding hours is permissible, so long as it is done so consistently.

The 6-month lookback period is always the 6 months immediately preceding sick leave regardless of any prior PTO, FMLA, or EFMLEA leave taken during that time frame.

When employers may require utilization of preexisting, accrued paid time off:

  • Employers cannot require the use of accrued paid time off available under their policies during FFCRA paid sick leave.
  • Employers may require that an employee take accrued paid time off “available to an employee under the employer’s policies” concurrently with paid EFMLEA leave. Subject to employer requirement or employee election, the employee is entitled to the full amount of pay provided for under a paid leave policy predating April 1, 2020.  However, the employer can only receive tax credits equal to the EFMLEA pay entitlement (i.e., 2/3 of the employee’s regular pay up to $200/day).
  • Employers and employees may agree to supplement EFMLEA pay with accrued paid time off.
  • If an employee exhausts accrued paid leave, but has more EFMLEA time available, then the employee will receive EFMLEA pay subject to the maximum limits permitted for such leave.

Paid leave subject to stay-at-home, shelter-in-place, quarantine, and isolation orders:

For purposes of the FFCRA, all of the above orders are effectively the same.  But,

  1. The order must be the reason the employee cannot work, or telework, and
  2. If the employer has no work for the employee to perform, paid leave is unavailable.

Please contact the Murtha labor and employment team for assistance with implementing the DOL’s rolling FFCRA guidance.

Print:
EmailTweetLikeLinkedIn
Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of…

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty, and other work-related common law claims. Sal also counsels clients on day-to-day issues involving workplace management and administration, including requests for reasonable accommodation for disabilities, for family and medical leave, and wage and hour issues.  He conducts employment law training on a variety of topics, including sexual harassment prevention and wage/ hour compliance.  He also drafts employment policies and agreements, and assists clients in auditing worker classification practices and policies both in the context of the Fair Labor Standards Act and state laws governing independent contractor determinations.

Photo of Matthew K. Curtin Matthew K. Curtin

Matthew Curtin is a Partner in the Litigation Department, the Chair of the Privacy and Cybersecurity Practice Group and a member of the Labor and Employment Practice Group.

In Matthew’s cybersecurity practice, he advises clients on compliance with state, federal and international privacy…

Matthew Curtin is a Partner in the Litigation Department, the Chair of the Privacy and Cybersecurity Practice Group and a member of the Labor and Employment Practice Group.

In Matthew’s cybersecurity practice, he advises clients on compliance with state, federal and international privacy laws including the Health Insurance Portability and Accountability Act (HIPAA) and the General Data Protection Regulation (GDPR). Matthew is particularly interested in advising his clients concerning employment privacy matters. Matthew is a member of the International Association of Privacy Professionals.

In Matthew’s labor and employment practice, he has successfully represented employers of all sizes concerning a wide variety of claims before state and federal courts, the National Labor Relations Board, the Connecticut State Board of Mediation and Arbitration, the Connecticut State Board of Labor Relations, the Connecticut Commission on Human Rights and Opportunities, and other various administrative agencies.

Matthew has substantial experience with collective bargaining negotiations, labor arbitrations, and labor relations. He regularly counsels senior management and human resources professionals concerning employment contracts, employment policies, hiring and termination procedures, workplace investigations, and harassment and discrimination avoidance.

Matthew has significant experience representing businesses in litigation concerning trade secret theft, unfair competition, and breach of non-competition and non-solicitation agreements.

Photo of Patricia E. Reilly Patricia E. Reilly

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices…

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices, and business disputes. In addition to maintaining a thriving litigation practice, Tricia counsels clients on a variety of employment-related issues including hiring, firing, and discipline; wage and hour; state and federal FMLA; sexual harassment investigations and prevention; Title IX; pregnancy and disability accommodation; and avoidance of employment discrimination liability.

Tricia is listed as a leading Labor and Employment Lawyer in Chambers USA.  She is listed in Best Lawyers in America®, and in 2017, Best Lawyers in America® recognized her as “Lawyer of the Year”, New Haven, Litigation – Labor and Employment. Tricia is a member of the American Bar Association, the Connecticut Bar Association and the New Haven County Bar Association.  She received her B.A. from Wesleyan University and her J.D. from University of California, Berkeley School of Law.

Photo of Adam D. Friedland Adam D. Friedland

Adam D. Friedland is a member of the Firm’s Litigation Department and Labor and Employment Practice Group. He represents clients in a variety of commercial litigation disputes, and counsels on potential litigation risks associated with all aspects of labor and employment law, including…

Adam D. Friedland is a member of the Firm’s Litigation Department and Labor and Employment Practice Group. He represents clients in a variety of commercial litigation disputes, and counsels on potential litigation risks associated with all aspects of labor and employment law, including wage and hour, discrimination, post-employment restrictive covenant, and related claims.

Adam has successfully represented clients in state and federal court, administrative proceedings, and alternative dispute resolution forums from inception through resolution.