Administering the technical details of the Families First Coronavirus Response Act (FFCRA) can be challenging and may be problematic if not properly managed.
Two types of leave, Emergency Paid Sick Leave (EPSL) and Emergency Family Medical Leave (EFML), are available, and requests for these leaves may increase as more employees are returning to work. Three aspects requiring attention include establishing eligibility, calculating hours worked, and determining regular rate of pay.
The eligibility criteria are different for each type of leave. For EPSL, the individual simply needs to be employed, while EFML requires an individual be employed for at least 30 calendar days. EPSL entitles a person to 80 hours or two weeks of leave from April 1, 2020 to December 31, 2020. Under EFML, an employee is eligible for up to 12 weeks of leave, but the amount available may be less if the employee has accessed FML during the year designated by the employer. The EFML year (April 1, 2020 to December 31, 2020) will not align with most districts FML calendar, so careful calculations must be made to ensure the correct amount of leave entitlement is given.
To accurately calculate the hours worked, an employer first should determine whether an employee is full-time or part-time. A full-time employee with a normal schedule of 40 hours per week would receive 80 hours of EPSL. A full-time employee with a varying schedule averaging 40 hours per week also would receive 80 hours of leave.
A part-time employee with a standard schedule would receive leave equal to the number of hours worked in a two-week period. For instance, an employee scheduled for 20 hours per week would receive a total of 40 hours of EPSL. Available hours for a part-time employee with a varying schedule should be calculated using the six-month lookback period from the day the employee first takes leave. If the individual has been employed for less than six months, the entire employment period must be used to determine the average hours worked.
Regular rate of pay
Pay under EPSL and EFML is based on an employee’s regular rate of pay as defined by the Fair Labor Standards Act (FLSA). This would include supplemental pay such as stipends and a blended rate of pay based on multiple job assignments. Paid leave and overtime premium pay are excluded from the calculation. As a result, the regular rate of pay may differ from the employee’s established hourly rate.
Some ten-month employees are hired for temporary positions during the summer. These individuals will be eligible for EPSL and EFML during the summer months. Supplemental rates of pay may differ from the employee’s rate of pay during the school year. The six-month lookback period must be applied when determining the regular rate of pay for these employees, and consider the established hourly rate during the school year and the supplemental rate of pay.
It is important to remain flexible through the return-to-work process and management of FFCRA. When determining applicability of leave be sure to consider any resolution that was adopted at the start of school closures.
Some employees may have multiple requests for leave related to COVID-19. Planning ahead to meet employee needs is important. If an employee exhausts FFCRA and accrued leave, the employer may consider granting unpaid leave that provides job protection.
There is no one-size fits all solution to the many scenarios that may arise. The Texas Education Agency (TEA) guidance for summer instruction, activities, and school visits is a tool that may help inform district decisions moving forward. The Texas Department of State Health Services has outlined minimum recommended health protocols for opening the state that also may guide decisions.
Topics related to eligibility, hours worked, and regular rate of pay are addressed in the Department of Labor’s (DOL) Families First Coronavirus Response Act: Questions and Answers. Additional information about regular rate of pay under the FLSA can be found in the DOL fact sheet #56A.
Karen Dooley is a senior HR consultant at TASB HR Services. Send Karen an email at email@example.com.
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