Tag: wage and hour

Summary of the Families First Coronavirus Response Act (FFCRA) Paid Time Off

April 20, 2020

The federal Families First Coronavirus Response Act was signed into law on March 18, 2020 by President Donald J. Trump. It became effective on April 1, 2020 and is set to expire on December 31, 2020. The Act amends the federal Family Medical Leave Act to create two types of leave which did not exist previously. The law cannot be applied retroactively, thus it is applicable only to leave that was taken on or after its effective date.

The Act applies only to private businesses who employ less than 500 persons in the United States of America. While employers are to be granted tax credits which will provide reimbursement for wages paid and the cost of continuing health and medical benefits during the leave periods, employers of fewer than 50 persons can obtain an exemption if complying with the Act would jeopardize their continuation as a “going concern”.

Federal Paid Sick Leave Act (FPSLA)

First, the Act creates the Federal Paid Sick Leave Act (FPSLA). This FPSLA provides up to two (2) weeks paid sick leave for employees who have been employed for any duration of time and require leave for the qualifying covid-19 related reasons. Leave would be paid at full wages for one’s own mandatory quarantine, health care official recommended self-quarantine, and presence of covid-19 symptoms. Also, leave would be paid at partial wages for caring for a family member or roommate who is quarantined, undergoing a health care official recommended self-quarantine, caring for children under the age of 18 (or over the age of 18 but unable to care for self due to disability) whose caregiver or school is unavailable due to the pandemic, or similar condition.

Full pay is defined as the employee’s regular rate of pay up to $511 per day and $5,110 in the aggregate. And, partial pay is defined as two-thirds of the employee’s regular rate, up to $200 per day and $2,000 in the aggregate. Part time employees refer to employees who work anything less than forty (40) hours in a work week. For those who have variable schedules, an employer may use the daily average over the prior six (6) months to compute the average. 

Employers are prohibited from requiring an employee to use other forms of paid leave or from altering their existing paid leave, before granting an employee leave under the Act. EPSLA leave can be taken in addition to any paid leave program a covered employer may already have in place, as well as any paid sick leave benefits an employee may be entitled to under any other federal, state, or local law, or a collective bargaining agreement. Employers are also prohibited from requiring the employee to provide another employee to fulfil their job duties in their absence. Lastly, employers are also prohibited from all forms of retaliation or discrimination against an employee for having exercised their rights under the Act. Penalties for failure to provide this paid leave is viewed by the US DOL as a failure to pay minimum wages.

 Employers are required to post or email the notice of the rights poster under the Act. Employer are not required to pay out any unused leave upon separation. 

Emergency Family and Medical Leave Expansion Act (EFMLEA)

Secondly, the Act creates a new qualifying reason which is the Public Health Emergency Leave to situations where an employee is unable to work because the employee must care for his or her son or daughter (as defined under the FMLA) whose school is closed or whose childcare provider is unavailable due to a public health emergency; the Emergency Family and Medical Leave Expansion Act (EFMLEA). This law provides up to twelve (12) weeks of leave paid time off work. The first two (2) weeks of leave would be unpaid, then the following ten (10) weeks of leave would be paid at partial pay which is two-thirds the employee’s regular rate of pay based on hours regularly scheduled to work. EPSLA as described above may be used for first two otherwise unpaid weeks of leave. An employee may elect to use accrued leave for this two week period, but the employer cannot require its use.

EFMLEA is available for employees who have been on the employer’s payroll for 30 of the prior 60 days. However, this leave time may be denied to health care workers and emergency responders, regardless of their tenure. EFMLEA can be used on an intermittent basis.

Employers may require or elect that other types of leave run concurrently. For instance, EFMLEA leave time counts towards the old FMLA leave time. However, if concurrent with other types of leave, then the employer must pay the greater of the two rates of leave. Wages are capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA. 

Employees are entitled to job protection under the Act, meaning that employers are required to return employees to the same or similar position they occupied prior to taking leave. However, employers may qualify for an exemption from reinstatement if the employer has fewer than 25 employees. 

Similar with the EPLSA, employers are prohibited from interference with this right and prohibited from retaliation or discrimination against any employee for exercising these rights.

The Act does not provide an individual right of action to include civil damages in a lawsuit against employers with fewer than 50 employees in 75 mile radius.  

Employees are required to provide notice to the employer of the need for leave, as soon as is possible. However, they are not required to utilized DOL forms. For various reasons, including in order to obtain the promised tax credits, however, employers should retain some documentation to support the circumstances warranting leave and its granting of same.

In closing, two frequently asked questions are worthy of note:

  1. Telework is work – it is not leave. Thus, all accounted for teleworking hours must be compensated. 

  2. The FFCRA applies to circumstances which make the employee unable to work, whether or not there is work available. The determinative question is: would the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order for themselves, their child, etc. 

Read all the regulations, fact sheets and updates as they happen here.

 

Storm Surges and Flash Flooding: A Few Employment Law Issues During Natural Disasters

September 17, 2018

You are an employer with a a goal set of each hour, day, week, month, quarter and year, maybe 5, 10, 50 years. But natural disasters such as hurricanes do not respect your goals; they are unpredictable and disruptive even to the most efficient workplaces. To minimize the havoc wreaked on your business by the strong storm, a well drafted human resource policy on issues relevant to bad weather is critical. This article addresses two key considerations to remain compliant with the law and to get back to business as soon as possible.

Wage and Hour

A natural disaster often forces a halt in business operations. However, the Federal Labor Standards Act (FLSA) does not relax or waive its rules during such a period. It requires employers to pay salaried exempt employees during a such a business closure if the employee worked at all during the relevant work week, no matter how briefly. To alleviate the cost to employers, the FLSA permits the employer to require employees to use their accrued and unused paid time off (PTO) during the shutdown. Non-exempt hourly employees on the other hand, may be paid for only the hours actually worked during a business shut down. The FLSA also expects that accurate records of employees’ time worked be persevered in a hurricane-proof format and continue to be kept as employees work through the event.

Employers should prepare clear policies governing this issue well in advance of having to apply its rules

Occupational Safety and Health

The Occupational Safety and Health Act requires employers to provide a safe workplace for their employees. Thus, employers must carefully assess the work space during and after natural disasters to ensure that buildings are structurally sound, hazardous materials are not exposed, amenities such a washrooms, air heating and cooling, first aid are fully functional, electrical wires are not damaged or exposed, mosquitoes and other pathogens are under control, among several other considerations.

OSHA permits employees to refuse dangerous work and to report dangerous working conditions. Dangerous conditions must be reported within thirty (30) days of its discovery and can be made via the OSHA website or over the telephone. Likewise an employee refusing dangerous work must do so promptly, and because OSHA does not recommend abandoning the worksite, the employee must work with management to address her concerns. 

Once again, clear policies on the issue drafted and provided to employees and managers in advance of a natural disaster is preferred.

News Flash: Update on Tip Pooling

December 4, 2017

The U.S. Department of Labor today announced a Notice of Proposed Rulemaking (NPRM) regarding the tip regulations under the Fair Labor Standards Act (FLSA). Under the proposed rule, workplaces would have the freedom to allow sharing of tips among more employees – an option that is currently restricted by a rule promulgated in 2011 that has been challenged in a number of courts.

The NPRM will be published in the Federal Register on December 5, 2017, and be available for public comment for 30 days. The Department encourages interested parties to submit comments on the proposed rule. The NPRM, along with the procedures for submitting comments, can be found at the Wage and Hour Division’s Proposed Rule website.

– From the USDOL WHD