03.26.2020 | COVID-19

Department of Labor Guidance on New Leave Law

COVID-19 Client Alerts:

Department of Labor Guidance on New Leave Law

Department of Labor Guidance
On March 24, 2020, the Department of Labor issued guidance to help employers implement the federal COVID-19 paid sick leave and expanded FMLA leave enacted by Congress last week. To summarize, the new law requires employers with less than 500 employees to provide employees 80 hours of paid sick leave for six, separate reasons. Employees will either be paid their regular rate of pay or 2/3 of their regular rate of pay, depending on the reason why the paid sick leave is being taken. Daily and overall pay caps apply. The law also allows employees who have worked for these employers to take twelve weeks of Family and Medical Leave if the employee needs time off to care for a child whose school or daycare closed because of COVID-19. The first two weeks of this leave is unpaid, although the 80 hours of paid sick leave can be used during this period. During the final ten weeks, however, employees are paid 2/3 of their rate of pay. Daily and overall pay caps again apply.

Highlights from The Department of Labor Guidance include:

  • Effective date:   Both types of leave are available April 1, 2020 (not April 2, as stated by the text of the new law).
  • Employers providing either type of leave are entitled to a tax credit. The reimbursable costs to employers will include not only the wages paid for either type of leave, but also the employer’s share of the affected employee’s health insurance premiums.
  • Employers must post notice of the new leave laws. The Department of Labor provides posters to use for compliance with this directive.
  • To determine the regular rate of pay for a part-time employee, use the number of hours per week the employee is regularly scheduled. If the employee’s schedule varies, use a six-month average of all hours worked to determine an average daily number of hours. The employee is entitled to two weeks of sick leave (at 100% or at 2/3 of the regular rate, depending on the purpose of the leave) or ten weeks of paid FMLA leave at 2/3 of his or her regular rate of pay based on that average number of daily hours. Of course, the amount paid is limited to the daily caps in both new leave provisions.
  • Employers with less than 50 employees need not provide paid sick leave or the expanded family and medical leave, if doing so would “jeopardize the viability” of the business. According to the Department of Labor, to elect this small business exemption, the employer must “document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.”
  • The regular rate of pay (which includes commissions, tips or piece rates) is calculated by taking the average of the employee’s regular rate over a period of up to six months prior to the date when leave is taken.

Important Information for Employers of Health Care Providers
Employers may exclude employees who are health care providers from these new leave laws. Health care providers include medical doctors and doctors of osteopathy, as well as nurses, dentists, clinical social workers, and others – as long as they are working within the scope of their practice. The full definition of “health care providers” is that used in FMLA and can be found at 29 Code of Federal Regulations section 825.125.

Exemptions from New Leave Law for Employers with Fewer than 50 Employees
The regulations for these possible exemptions are expected in April.

The complete guidance can be found here: https://www.dol.gov/newsroom/releases/whd/whd20200324


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