FAQs — Families First Coronavirus Response Act

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FAQs

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 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

• Families First Coronavirus Response Act
• Federal and California Worker Adjustment and Retraining Notification Acts

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