To calculate the amount to be paid for employee leave under the Families First Coronavirus Response Act, it is clear that employees who take advantage of FFCRA paid leave must be paid what they would ordinarily earn in a workweek. Their ordinary workweek earnings are based on their regular rate of pay, including the base rate for any overtime hours worked, but not any premium pay. An employee should only receive paid leave for the hours they are normally scheduled to work. Accordingly, an employer must first determine both the regular rate of pay and the appropriate work schedule in order to calculate the amount to pay an employee on FFCRA leave.
A regular, established work schedule can be used for workers whose work schedules do not change. For workers subject to a part-time or varied work schedule, a six-month average from the period prior to the date of the leave should be used. Where someone with a variable schedule has not yet worked six months, the hours agreed upon at the time of hire can be used. If there was no such agreement, then the hours for daily leave can be calculated based on the average hours worked per workday over the entire term of employment.
A six-month average is also used to calculate the average rate of pay prior to the date of the leave. For persons who have worked less than six months, the average will be based on the rate of pay for each week worked. Commissions, tips, or piece rates are included in the calculation by dividing the total sum earned by the total number of hours worked in each workweek. Employers can also compute this amount for each employee by adding all compensation that is part of the regular rate over the period and divide that sum by all hours worked in the same period.
As with other regular rate calculations made under the federal Fair Labor Standards Act, amounts paid for expenses or for time not worked, such as holiday pay, gifts, vacation pay, show up or call-back pay, are not included. Note that the regular rate must not be less than any applicable state, federal or local minimum wage. Also, the pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.
As emergency paid sick leave is subject to a limit of two weeks or 80 hours, employers should be aware that an employee’s regular schedule may result in an uneven payment of benefits over the two-week period of the leave. Thus, and for example, an employee who regularly works 50 hours a week may be paid based on that schedule for the first week, but would only have 30 hours left for pay in the second week. In addition, employers should keep in mind that emergency paid sick leave is paid at the regular rate subject to a $511 a day cap, or at 2/3 the regular rate subject to a $200 a day cap, and an aggregate cap of $5111 or $2000 total, depending on the reasons for the leave. (See earlier “What Employers Need To Know About The Families First Coronavirus Response Act” blog post for further details.) Emergency family leave is paid at 2/3 the regular rate subject to a $200 a day cap, and a $10,000 total, for another ten weeks. The qualifying reasons and caps are set forth on the FFCRA poster notice.
Finally, employers should understand that employees are permitted to substitute accrued vacation or other applicable paid sick leave during the period of leave under the FFCRA. Such employer or state provided benefits are not, however, in addition to FFCRA paid leave, meaning that employers do not have to pay both amounts for the same time period. Further, employees may not be forced to use vacation or other paid sick leave time during FFCRA leave.
The author would like to gratefully acknowledge the assistance of Kimberly Brooks, Esq.
