Emergency Family and Medical Leave (Part II)

Updated: Apr 6, 2020

This is the 2nd part of an explanation of employer’s obligations under the two Acts signed into law by President Trump on March 19, known as Phase 2. See my prior post for the EPSLA explanation [Emergency Paid Sick Leave Act]


For employers, the two Acts that provide benefits to employees may seem and probably are for nearly everyone significantly cumbersome – especially when the business is shuttered and no income is being produced. Our legislators have approached this problem by first passing legislation for the worker. In the coming Phase 3, employers have been promised to receive credits or benefits that will allow them to pay for the employee benefits.


That will be coming from Congress in the very near future, but right now we just don’t know yet what that will be.


Also, the Secretary of Labor currently is authorized to write regulations to allow employers of under 50 employees to claim an exemption. That hasn’t happened, and I don’t expect that to happen until after everyone finds out exactly what Congress is going to do for employers. After that, we then might get regulations that tell employers if they can claim an exemption or not. Again, hopefully all this happens within the next several days.


Regardless, all employers are obligated now to comply with this Act [EFMLEA] and with EPSLA in 15 days, so check that prior email about EPSLA if you received this one first.


Emergency Family and Medical Leave Expansion Act [EFMLEA]


When:

The Act is effective in 15 days from today, March 19 [for this Act and for EPSLA, we expect regulations to come forward to explain in detail what this means (and other provisions) – is pay due in 15 days?, or a pay period starts in 15 days for which employees would be paid within a certain time?, or the next regular paycheck date?]


Eligible:

Any employee working for at least 30 calendar days


Which employers:

All employers under 500 employees


Qualifications:

When the employee is unable to work or telework because they have to care for a child under 18 years of age if the school or place of care has been closed, or the child care provider is not available.


Amount in Time:

Up to 12 weeks of leave.

The first 10 days may be unpaid (although the employee may use other paid leave time during the 10 day period)


Amount in dollars:

No less than 2/3 of the employee’s regular rate of pay, and no less than the number of hours the employee would normally be scheduled to work – for up to the full 12 weeks.

However, paid leave shall not exceed $200 per day and $10,000 over the 12 weeks.


Reinstatement rights:

Employees are entitled to reinstatement to the same position or an equivalent position, unless the employer employs fewer than 25 employees.  In that case, the employer must make reasonable efforts to provide the employee with a position or an equivalent position for 1 year after the “public health emergency concludes” or 12 weeks after commencement of the leave, whichever is earlier.


Exclusions:

It is possible that employers of fewer than 50 employees might be excluded. The Secretary of Labor has authority to issue regulations for good cause that would exclude a small business of under 50 employees if requirements would “jeopardize the viability of the business as a going concern”. See above comment.


Salaried Positions:

From the Secretary of Labor: “….a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt.


For more info and details:

https://www.dol.gov/agencies/whd/flsa/pandemic


Unlike the EPSLA, this Act does already have in it a payroll tax credit to be granted to employers to offset the costs. We are awaiting more information on that and will forward it to you when available.


Other key FAQ’s answered by the U.S. Department of Labor:


How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?

  • The FLSA generally applies to hours actually worked.  It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.


In the event an organization bars employees from working from their current place of business and requires them to work at home, will employers have to pay those employees who are unable to work from home?

  • Under the FLSA, employers generally only have to pay employees for the hours they actually work, whether at home or at the employer’s office.  However, employers must pay at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek.  Salaried exempt employees must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.  (See the U.S. Department of Labor Wage and Hour Division for additional information or call 1-866-487-9243 if you have questions.)

  • When not all employees can work from home, we encourage you to consider additional options to promote social distancing, such as staggered work shifts


Do employers have to pay employees their same hourly rate or salary if they work at home?

  • If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then you must pay the same hourly rate or salary.

  • If this is not the case and you do not have a union contract or other employment contracts, under the FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office.  However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek.  Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.

  • If the Service Contract Act (SCA) or state or local laws regulating the payment of wages also apply, nothing in the FLSA or its regulations or interpretations overrides or nullifies any higher standards provided by such other laws or authority. (See the U.S. Department of Labor, Wage and Hour Division for additional information on the SCA or call 1-866-487-9243.)


How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?

  • The FLSA generally applies to hours actually worked.  It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.


What are an employer’s obligations to an employee who is under government-imposed quarantine?

  • WHD encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.

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