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Date:
03/27/2020
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COVID-19 and Paid Leave: What Do I Pay My Employees Now??

New legislation enacted. New guidance constantly being released. It’s hard to keep track of how much you now must pay your employees. Payne & Fears has made the process easy with this “cheat sheet.”

Basic Guidelines

Emergency Paid Sick Leave Act – An employee taking paid sick leave because he/she is unable to work or telework and:

(1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19, or

(2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or

(3) is experiencing symptoms of COVID-19 and is seeking medical diagnosis,

are entitled to their regular rate of pay, the federal minimum wage, or the state/local minimum wage, whichever is highest, but in no event more than $511 per day or $5,110 total over the entire two-week period.

An employee who is taking paid sick leave because he/she is unable to work or telework and:

(1) is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or

(2) is caring for his/her child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons, or

(3) experiencing any other substantially similar condition that may arise, as specified by the Secretary of Health and Human Services,

are entitled to two-thirds of their regular rate of pay, two-thirds the federal minimum wage, or two-thirds the state/local minimum wage, whichever is highest, but in no event more than $200 per day or $2,000 total over the entire two-week period.

Emergency Family and Medical Leave Expansion Act (EFMLA) An employee who is taking expanded family and medical leave is not entitled to be paid for the first two weeks. The employee may, however, take any accrued vacation leave, personal leave, company medical or sick leave, or emergency paid sick leave during the first two weeks. For the next 10 weeks, the employee is entitled to receive no less than two-thirds of his/her regular rate of pay, two-thirds the federal minimum wage, or two-thirds the state/local minimum wage, whichever is highest, but in no event more than $200 per day or $12,000 total over the entire 12-week period.

What is a Regular Rate of Pay for These Purposes?

The regular rate of pay is the average of the employee’s regular rate over the six months prior to the date they take leave. But if the employee has not worked for the employer for the last six months, then the regular rate of pay is the average of the employee’s regular rate for each week the employee has worked for the current employer.

A regular rate is: Total compensation in the workweek (except for statutory exclusions) ÷ Total hours worked in the workweek = Regular Rate for the workweek. Statutory exclusions can include, but are not limited to, discretionary bonuses, profit-sharing plans, employer contributions to benefit plans, parking benefits, gym memberships, and adoption assistance. Statutory exclusions do not apply to employees who are paid with commissions, tips, or piece rates to the same extent they are included in the calculation of the regular rate under the FLSA. The regular rate may not be lower than the federal minimum wage or, where applicable, a higher state or local minimum wage.

How Do You Pay Part-Time Employees?

Part-time employees are entitled to paid leave for their average number of work hours in a two-week period. If part-time employees’ normal hours scheduled are unknown, or if a part-time employee’s schedule varies, an employer may use a six-month average to calculate the average daily hours. If the calculation cannot be made because the employee has not worked for the employer for six months, then an employer may use the average number of work hours agreed upon hiring. And if there is no such agreement, an employer may calculate the appropriate number of hours based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

How Do You Pay Full-Time Employees with Irregular Hours?

If a full-time employee’s schedule varies from week to week, the method for calculating his/her hours is the same as that used for part-time employees.

How do you Pay Overtime for Sick or EFMLA Leave?

Employers must pay for overtime that is regularly scheduled,  but keep in mind that (1) the daily and aggregate maximum rates as explained above are still applicable, and (2) premiums paid for overtime hours are not applicable. Overtime premiums can include extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays or for work outside of the hours established in good faith by the contract.

Emergency Paid Sick Leave Act – This act requires that employers pay employees for up to a total of 80 hours of paid sick time over a two-week period. Thus, 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.

Emergency Family and Medical Leave Expansion Act – This act requires an employer to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

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